LEX LOCI 2015

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FOREWORD reputation as a neutral venue, that international arbitration took off at a phenomenal trajectory. In terms of volume, arbitration has probably overtaken litigation in relation to commercial disputes. There is still considerable room for growth in international arbitration, given the inexorable rise of Asia as the engine of global economic growth.

English law (including statutes of general application) was received as the common law of Singapore since 1926 under the Second Charter of Justice and applied to the local inhabitants subject to local circumstances, and later local legislation.

Reception was formally cut off by the Application of English Law Act 1993, but by then, much of Singapore law was a mirror image of English law, Naturally, for this reason, developments in English law continue to influence the development of the common law in Singapore. The two jurisdictions continue to share a common body of norms, values, principles and rules, based on fairness, justice and reason. Hence, Lex Loci plays an invaluable role in maintaining the relationship between the two jurisdictions.

There are 31 articles and essays in this issue, organised under three broad subject headings: Law and Commerce, Law and Society and Features, which discuss various aspects of private law, public law, ADR and practice of law, most of them on a comparative basis between England and Singapore. As most lawyers and High Court judge are/were general practitioners, there is a lot of new legal knowledge in some of these writings which should interest them.

For example, the first article in this collection, “Elevate the Lex Loci Delicti”, informs the Singapore lawyer that the UK and the US have abandoned the traditional English common law approach (which is still the law in Singapore), and why and how the changes have occurred in these jurisdictions. The discussion on the merits of the American governmental interest analysis in the choice of law and its suitability for Singapore is useful.

The article concludes with a call for Singapore to re-examine its choice of rule laws, because it is the dawn of a new day in Singapore.

Singapore is now a major centre for international arbitration.

The Singapore International Arbitration Centre (SIAC) was established by the Attorney General as a private company limited by guarantee in 1990 following the recommendation in 1985 by a Working Committee (chaired by me) which recommended international arbitration as a growth area for legal services. It took a long time to take off. It was only with the provision of, among other things, world class hearing facilities, a favourable tax regime for foreign arbitrators and counsel, and Singapore’s 3

There are a number of what I would call aspirational articles on what Singapore law should be compared with developments of the corresponding law in the UK and other democratic countries.

The aspirations of the writers are commendable. Without such aspirations, there can be no progress. In “To Act Or Not To Act: Evaluating The Merits of UK’s New Defamation Reforms In The Singapore Context”, the writer discusses the legislative changes to the law of defamation as brought about by the UK Defamation Act 2013 and recommends that Singapore local law observe the development of English defamation law dynamically, gleaning insight from its application in common law in a retrospective fashion, and that Singapore should observe developments in UK defamation law with renewed interest.

In “Clear Skies Ahead for Singapore”, the writer considers the effectiveness of the Transboundary Haze Pollution Act 2014 in tackling trans-boundary haze emanating annually from Indonesia, and concludes realistically that the statute itself is aspirational and that Singapore cannot solve the haze problem by extra-territorial legislation without co-operation from Indonesia.

In “Criminal Trials and Liberty: The Rights of Our Accused”, the writer examines the state of the criminal process in Singapore and found wanting its position on to the presumption of innocence and its related privileges of self-incrimination and right to silence. These are process rights or privileges which are crucial in embodying the liberal principles that criminal courts should aspire to espouse. It is true to say that the criminal process in Singapore prioritises the protection of society from crime as against according to many process rights to suspects and accused. The current balancing societal rights and suspect interests is unlikely to change for a long time. But, change can still come, unexpectedly. Only last week, the Singapore Police agreed to experiment the use video recording for recording statements of suspects in certain types of offences to test whether it is superior, overall, to the current method of taking investigative statements.

The mandatory death penalty for drug trafficking continues to assault the conscience of many. In “Does Drug Trafficking Deserve The Mandatory Noose?” the writer takes the view that whilst the recent amendment to the law that the courts not to sentence a drug trafficker (as defined) if the Public Prosecutor certifies that the offender is a courier and has rendered assistance to the enforcement agency is a step in the right direction towards a better balance of deterrence and curbing manifest injustice to criminals, there is much more to be done and room for greater reform in protection of human rights and constitutional principles. The writer is concerned with the PP holding the “veto” and the apparent lack of transparency of his decision, and considers the balance to be better if this issue were decided by the court. As a matter of fact, the courts do not rubber stamp

the decisions of the PP. Until and unless the mandatory death penalty is abolished, there no bright red line can be drawn by legislation or judicial decision.

The Sedition Act (which was a colonial law) is examined in “Sedition? Sedition?! Sedition!” The exclamation marks in the title are telling. They tell the reader (if he reads the article) that the Sedition Act continues to be viewed as an archaic, but convenient tool for persecution where offensive and intentional attacks by words have been made against racial or religious groups. However, recent actions taken against socio-political websites for seditious statements have shown its unfair and inconsistent application, and therefore the law is in urgent need of reform. Many online bloggers have taken the same position.

Inevitably, developments in public law cannot be neglected in an annual law journal. Singapore’s Constitution is based on the Westminster model, and its Parliament has adopted many of the practices of the Westminster Parliament. Yet, there has been significant departures, and in “The House We Inherited: The House We Built the Westminster Model in Singapore”, the writer compares some features of the UK unwritten constitution and the Singapore Constitution and also some of their parliamentary practices, and concludes by apparently suggesting that the Singapore Parliament lacks accountability (to whom is not specified). In “Contextualising the Rule of Law in Singapore”, the writer compares the “pragmatic” rule of law as described by the Minister for Law and the “academic” conception of the rule of law with the “authoritarian” rule of law as described by one of Singapore’s critics, and concludes by concurring with the academic and establishment positions rather than the outlier position. The ideal rule of law in its most liberal concept may exist only in a Platonic world, but not in the real world.

Time and consideration for the reader do not permit me to discuss the other papers in this issue. All of them are worth reading and law students should certainly be able to spare the time to do so. However, some articles are highly academic and might even be thought unfashionable in this part of the world, such as “Universal Rights, Asian Values: An End to the Debate”. Nevertheless the article is a useful summary of the contest between universalism and cultural relativism in the indispensable place of human rights in a civilised society. The eight (8) articles on what young lawyers can expect to confront or encounter in the real world of law practice are also worthwhile reading in order to shorten the lead time on decisions on what career in law or law-related occupations they should embark on.

I have left to the end for discussion the two articles on whether bribe moneys received by a fiduciary in breach of his fiduciary duties gives rise to a proprietary claim (by way of a constructive trust) or only a personal claim by the principal. They contain the most incisive analyses of the applicable common law and/ or equitable principles and policy considerations as approved or applied in FHR European Ventures v. Cedar Capital (“FHR”) [2014] UKSC 45; [2015] A.C. 250 (“FHR”), approving Attorney General for Hong Kong v. Reid [1994] 1 AC 324 (“Reid”), which approved the earlier Singaporean High Court decision of Sumitomo Bank v. Thahir [1992] SGHC 301, and which in turn was followed by the Singapore Court of Appeal in Thahir Kartika Ratna v. Sumitomo Bank [1994] 3 SLR(R) 312. In Guy Neale v. Nine Squares Pty Ltd [2014] SGCA, the Singapore Court of Appeal examined the reasoning in FHR and concluded that it was held in FHR that the principal has a proprietary claim to all unauthorised benefits, including bribes, received by the agent in breach of his fiduciary duty. This ruling is based on the “wrongdoing thesis” which was applied by the Privy Council in

Reid.

The first article criticises the decision in FHR in approving Reid and the wrongdoing thesis because there is superior competing “disability thesis” (which FHR also considered) to ground its decision. Under the “disability thesis”, a fiduciary is ‘disabled’ in Equity’s eyes from beneficially owning any asset received in breach of fiduciary duty, whether a bribe or an illicit profit.

The writer prefers the disability thesis as being superior to the wrongdoing thesis in terms of (a) coherence with existing equitable rules, (b) pedigree, and (c) eliminating all the criticisms of the disability thesis, with which the writer disagrees. The writer argues that Singaporean law must choose between the mutually incompatible propositions in Thahir, Reid, and FHR and hopes that Singaporean courts would be equal to the task of salvaging simplicity.

The second article picks up on the first article and argues that the simplest way to salvage simplicity is for the courts to hold that bribe-taking gives rise to a personal claim and not to a proprietary claim. The writer rejects the “wrongdoing thesis” for “a patent inconsistency in this policy driven argument” by asking “If a constructive trust is imposed over bribes taken by fiduciaries on the basis that bribery is a heinous crime, why should a bribe taken by a fiduciary be more ‘evil’ than a bribe taken by a non-fiduciary?” The “disability thesis” is also rejected because it is justified on the fiction that “equity treats men as good” and therefore “a fiduciary is thereby disabled from committing breaches”, when in fact a bribe-taker cannot be said to be “disabled” from doing so. The writer therefore argues that the position of Lister v. Stubbs and Sinclair Investments (UK) Ltd v. Versailles Trade Finance Ltd (“Sinclair Investments”) (which was overruled by FHR) ought to be vindicated. This, of course, is a bold (but wholly unrealistic) position to take since it involves arguing that Lord Neuberger was wrong in rejecting his own judgment in Sinclair Investments, and that Thahir, Reid, and FHR were wrongly decided. Most developed countries have now enacted legislation to prevent the proceeds of crime (including bribes) from being kept by criminals and their beneficiaries and recipients from retaining them against the victims and the state: Centillion Environment & Recycling Ltd (formerly known as Citiraya Industries Ltd) v Public Prosecutor [2013] 1 SLR 444; [2012] SGCA 65. Such legislation may be said to confirm the case for the wrongdoing thesis.

Once again, I commend the contributors and the editorial board for bringing out another collection of legal writings that demonstrate the consuming interest that members of the UKSSLS continue to show in the development of Singapore law and its legal environment. At the same time, as students studying English and European law, they sometime provide a different intellectual background and approach to similar social, economic and political developments at home. Singapore can only benefit from the diversity of views they bring to the continuing discourse of legal developments, and the rule of law.

May Lex Loci continue to flourish and provide a platform for our UK law students to share with us their aspirations for Singapore and its legal system.

Chan Sek Keong Senior Judge (Retired Chief Justice) 1 August 2015

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It is with great pleasure that the editorial committee and I present to you Lex Loci 2015. First and foremost, we would like to express our sincerest gratitude to Senior Judge and former Chief Justice Chan Sek Keong for writing a foreword for the journal as patron of the society. We are also immensely thankful for our sponsors’ generosity, without which this project would not have been possible.

This year, Lex Loci celebrates its 10th birthday as the UKSLSS law journal, which fortuitously coincides with Singapore’s fiftieth year as an independent state. Anniversaries are a time for looking inward, as well as for thinking back to our beginnings. Instead of waxing lyrical about Singapore’s journey, or the UKSLSS’, I hope our readers will cast their minds to their own journey with the law, whether they happen to be law students, young lawyers, experienced practitioners or even prospective law students.

It is trite, especially in university admissions essays, to say that “law is a discipline that touches every area of our lives”, but few really realise the extent of this statement until beginning law school, or indeed, starting practice. Law is a multi-faceted study, with as much scope as it has depth, and there is room for any personality to find its own niche. This year’s issue of Lex Loci truly reflects the idea that no two people have the same experience with the law. This issue showcases articles on a wide array of different topics that take a variety of approaches, from theoretical debates on fiduciary bribe taking, to evaluations of Singapore’s stance on divorce, to a criminological spin on the law on mentally ill offenders. Whether you have a penchant for black-letter law or are passionate about using the law to further societal progress, we hope Lex Loci inspires you to continue looking for the area of law which interests and suits you most, no matter what stage of your life you may be in.

We are also extremely grateful to the talented individuals who have agreed be featured in Lex Loci and share with us their wisdom and views: Mr. Benjamin Cheong, Mr. David Chee, Mr. Terence Teo, Mr. Josephus Tan, Mr. Nandakumar Ponniya, Mr. Nicolas Patrick, Mr. Wilson Hue, Ms. Juliana Yap, Ms. Priscilla Kam, Professor Michael Hor and Ms. Jolene Tan. It is only by being open to the diversity of legal careers available in today’s market that we can truly develop Singapore’s legal scene, and this year’s issue features prominent members of the legal fraternity with markedly different career paths as well as lawyers from other common law jurisdictions.

Finally, I would like to thank my editorial committee and all the contributors, without whom this journal would not be possible. It takes a certain amount of love for the law to willingly research and write an academic essay after spending hours in lectures and completing coursework, and I have been truly inspired by the passion I have witnessed. I hope that this has been a fruitful experience for all involved, and that we continue to actively and intellectually engage with the law in the years to come.

Esther Lim Editor-in-Chief

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From left to right, Row 1: Trina Tan, Eva Teh Jing Hui, Esther Lim, Joanne Leong Row 2: Tan Wei Ming, Michelle Kang, Natalynn Ong, Wong Pei Ting, David Lui Not present: Tan Wen Shan, Eugene Tan

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Esther Lim

University College London Editor-in-Chief Esther loves reading about whatever happens to catch her interest, which tends to involve anything from police killings in America to the implications of Grexit. She also loves rambling about her findings to unsuspecting friends over dessert and noncaffeinated beverages.

Wong Pei Ting

University College London Managing Editor In between being told to slouch less and eat more, Pei Ting dreams that one day she may make “a difference” (whatever that means). She also dreams of one day making her cat internetfamous – but not before slouching less and eating more, of course.

Trina Tan

University of Nottingham Managing Editor A theatre geek and ardent reader, Trina enjoys her time traipsing around the UK and Europe. She believes that the recipe to a good life is good food, good plays and good friends. While she is stationed in the little homey town of Nottingham, she designs for Nottingham’s Advocate Magazine and partakes in moots.

Tan Wei Ming

King’s College London Deputy Editor Wei Ming recently graduated from King’s College London. When not in the library engaging the intricacies of law, he likes to travel and indulge in good food.

Joanne Leong

London School of Economics and Political Science Deputy Editor Joanne is exceedingly fond of cycling, her saxophone, and long walks. Though keen to savour the flavours of life, she stands firmly by her practice of condiment-free cooking.

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David Lui

University of Bristol Deputy Editor Apart from adding to the warm bodies in the library, David spends most of his time mooting and thinking about food. When he has discharged all of his academic and editorial writing duties, he shares his time between writing fiction and cycling.

Tan Wen Shan

University College London Deputy Editor Wen Shan loves gigging and pigging out, dependant on what his stomach dictates. Interested mainly in criminal law, he aspires to be a criminal law prosecutor in future.

Michelle Kang

University of Oxford Deputy Editor (Features) A BA and BCL graduate from the University of Oxford, Michelle enjoys gallivanting around the globe, ballroom dancing, playing the piano, and watching documentaries on YouTube.

Eva Teh Jing Hui

University of Leeds Deputy Editor (Features) With a loud voice that belies her short stature, Eva is always keen to engage in lively debates about everything from feminism to the best new eatery in town. She also enjoys daydreaming about her next food and travel adventures.

Natalynn Ong

King’s College London Deputy Editor (Features) While reading law in London, Natalynn spends a fair amount of time attempting to recreate Singaporean dishes from scratch in her kitchen. When not testing the neighbours’ patience with the fragrant aroma of fried sambal belacan, Natalynn enjoys playing computer games and reading books across a wide range of genres.

Eugene Tan

University of Liverpool Deputy Editor (Features) When back in Singapore, Eugene keeps himself busy at his favourite hawkers, and tries his best to soak up the sweltering city before returning to cold and miserable English weather.

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PRESIDENT’S MESSAGE Dear Readers,

It is really my privilege to be the President writing the President’s Message for the 10th Edition of Lex Loci, the annual law review of the United Kingdom Singapore Law Students’ Society. Looking back at the past ten years, I realise that we are all really dwarves standing on the shoulders of giants.

Society alumni have spoken to me about the initial challenges they faced getting our sponsoring firms on board with the idea of printing a legal journal authored by Singapore law students in the UK. This year, we celebrate an entire decade of academic commentary, furthering Singapore jurisprudence from the perspective of a UK legal education.

Much has to be said, however, about this particular edition of Lex Loci. Firstly, credit must be given to the Editor-in-Chief, Esther Lim, and her Editorial Committee. I am very proud to declare that Lex Loci is 100% a student effort. Each article is written and edited by our student members; every graphic and the layouting done by our in-house Managing Editor for Graphics and Layouts, Trina Tan. Being a Society whereby our members are scattered all across the United Kingdom, coordinating an editorial effort can be quite the nightmare. I am thus extremely proud of our Editorial Committee which has risen to the occasion.

Lex Loci continues to be an important avenue for the Singapore law student studying in the UK to comment on the development of Singapore jurisprudence while reading English law. Very often, Singapore case law is neglected until one’s Part A course, or perhaps, when a Contract Law textbook mentions Andrew Phang JA’s coda in Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] 2 SLR 332 on the doctrine of consideration. Submitting an article to Lex Loci thus forces the UK-based law student to delve deep into the approach Singapore courts have taken on particular areas of legal interest, and to develop greater appreciation for the nuances between Singapore and English law. It is heartening that in spite of studying 6000 miles away from Singapore, law students in the UK undoubtedly remain connected to the jurisprudence of their homeland.

Our community took a hit this year, with 8 of our Member Universities being delisted from the Ministry of Law’s List of Overseas Scheduled Universities. Almost half of our universities were culled, and from a policy perspective, we were the “problem”. We were the reason for the “oversupply” of law students back in Singapore, and thus the efficient demand-and-supply solution was to slice us off to achieve a better price point on the demand and supply curve.

As mere students, we can do little to influence big picture policy changes. However, what we must do is to continue to be diligent purveyors of the law. The legal profession requires the individual to analyse and advise and give good counsel. To do these things one requires judgment and wisdom, which can only come through deep reflective study.

The Singapore legal industry continues to be an increasingly exciting place for legal practice. This year, we saw BCBC Singapore Pte Ltd v. PT Bayan Resources TBK (SIC/S 1/2015) as the first case to be heard before the newly established Singapore International Commercial Court. The litigants were a Singapore subsidiary of an Australian company and an Indonesian company respectively, while the panel of 3 judges to hear the case were from Singapore, the United Kingdom, and Hong Kong. The Singapore International Arbitration Centre continues to see an increasing caseload, with a large number of cases concerning disputes unconnected to SIngapore. The disputes sector is not alone in this spike in legal work, with an increasing number of foreign firms expanding their Singapore practices with a strong focus on corporate work. Big local firms are also increasingly regionalising their practices.

Whatever the rhetoric might be, an international education can never be a liability in a rapidly-internationalising legal arena.

Speaking from personal experience, my own education at King’s has been peppered with influences from Continental European and 11

American jurisprudence, allowing me to take different perspectives to the same subject. Studying in the heart of the common law world has also offered me a deeper appreciation for English legal tradition. In an area of law that I take particular academic interest in, tax law, English cases have always formed the foundation for the different methods of thinking about tax issues, be it in Australia, New Zealand, Hong Kong, or Singapore. In the area of competition law, jurisprudence from the European Court of Justice holds particular sway before the Singapore courts. The syllabi of local law schools continue to take a more international direction, with options for the study of foreign legal systems, as well as different exchange or dual degree programs with foreign universities. In 2015, it is vital that, being future lawyers, we maintain a global perspective. Singapore is ultimately an island; we cannot survive on our own.

With that, I want to wish all readers a happy read. Flip through the pages and read what interests you; I hope that these articles will inspire you to contribute to our little journal of commentary in its next edition. We will always have more pages for more members to write. I have been told that Lex Loci has also been reference material for pre-university students to aid their applications to law school.

Should you be that student, I hope that Lex Loci has provided you with a fresh perspective of the law, and that we did not deter you from legal education.

I also wish to thank Benjamin Cheong, David Chee, Terence Teo, Josephus Tan, Nandakumar Ponniya, Nicolas Patrick, Wilson Hue, Juliana Yap, Priscilla Kam, Michael Hor and Jolene Tan for so kindly taking time to give interviews for our Features section. Your work has allowed our readers to gain a deeper insight into various aspects of legal practice and academia, and provided us with alternative vantages outside of the four walls of law school. Last but not least, I wish to extend my heartfelt appreciation to Senior Judge and former Chief Justice Chan Sek Keong, who even in his retirement continues to lead by example – reading, contemplating, and critiquing each individual article. His advice and guidance to the young law students that we are are invaluable. We are exceedingly humbled by your wisdom and magnanimity.

Finally, thank you, for supporting the Society wholeheartedly in its 17 years of existence. It has been my immense privilege serving you as President, and I wish you all the best in your legal education.

Yours truly, Kok Weng Keong President of the United Kingdom-Singapore Law Students’ Society

EXECUTIVE COMMITTEE

From left to right: Vice-President (Marketing), Cumara Kamalacumar (Durham University) Vice-President (PR), Vivian Toh (University of Bristol) Vice-President (Secretarial), Sherah Tan (University of Bristol) President, Kok Weng Keong (King’s College London) Vice-President (Editorial), Esther Lim (University College London) Vice-President (Treasurer), Kwek Jia Hao (University of Exeter)

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CONTENTS LAW AND COMMERCE

15 Elevate the Lex Loci Delicti?

Joanne Leong, London School of Economics and Political Science 23 Alternative Dispute Resolution in the Singapore Legal System David Lui, University of Bristol 29 Downloading a Car: Implications in the Advent of 3D Printing Iam Lam, University College London 34 To Act or Not To Act: Evaluating the Merits of UK’s New Defamation Reforms in the Singapore context Quek Zhao Feng, University College London 39 The Role of Corporate Directorships Eva Teh Jing Hui, University of Leeds 44 Debate on the Basis for the Reid Constructive Trust Salvaging Simplicity: The Conceptual Implications of FHR European Ventures 45 LLP v. Cedar Capital Partners Myron Phua, Columbia University and King’s College London A Tale of Bribes from Singapore to Hong Kong to England: A Proprietary 55 Overkill Tan Wei Ming, King’s College London 59 An Implied Duty of Good Faith?

Kwek Jia Hao, University of Exeter 64 Justification for the Consideration Doctrine Jeremy Sia, University of Bristol

LAW AND SOCIETY

68 Contextualising the Rule of Law in Singapore David Lui, University of Bristol 75 Clear Skies Ahead for Singapore?

Ruth Ng, University of Oxford 83 Criminal Trials and Liberty: The Rights of Our Accused Tan Wen Shan, King’s College London 88 Does Drug Trafficking Deserve the Mandatory Noose?

Tan Wen Shan, King’s College London 93 Rethinking Mental Disorders Daniel Lee, University College London 97 Sedition? Sedition?! Sedition!

Eugene Tan, University of Liverpool 103 Delayed Divorce: Singapore’s Petition Time Bar Joanne Leong, London School of Economics and Political Science

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107 The House We Inherited; The House We Built: The Westminster Model in Singapore Clara Yeo, University College London 113 Judicial Review in Singapore and England: A Comparison Patrick Yeo, University of Oxford 119 A Blessing or a Liability? Revisiting Wrongful Life and Wrongful Birth Claims in Tort Michelle Kang, University of Oxford 125 The Road to Hell is Paved with Good Intentions: An Assessment of the Latest UK Proposal for Legalisation of Assisted Dying, and its Applicability to Singapore Sherah Tan, University of Bristol 130 Heeding the Silent Cry: Steeping Up The Fight Against Human Trafficking In Singapore Indhuja Ramakrishnan, University of Liverpool 135 No Wo(Man)’s Land: Singapore’s Laws Through An Inclusive Feminist Lens Wong Pei Ting, University College London 140 Universal Rights, Asian Values: An End to the Debate?

Esther Lim, University College London

FEATURES

145 Musings and Advice on a Legal Career Michelle Kang, University of Oxford 149 Law in the Commercial World Eva Teh Jing Hui, University of Leeds 155 Answering the Siren’s Call Natalynn Ong, King’s College London 158 The Road Less Travelled: Training in Hong Kong Michelle Kang, University of Oxford 161 Rethinking the Groves of Academia Esther Lim, University College London 165 Private Lawyers, Public Interest: The Association of Women for Action and Research Wong Pei Ting, University College London 168 Finding Balance in a State of Unbalance: The Age Old Tussle Between Work and Life Natalynn Ong, King’s College London 172 Pro Bono in Singapore and Abroad Eugene Tan, University of Liverpool

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ELEVATE THE LEX LOCI DELICTI? Cross-border torts confront courts with the question of choice of law. This article examines the implications of Singapore’s rules, and considers recent reform proposals.

By Joanne Leong*

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Image: Flickr CC @ Brian Fagan

* The author would like to thank Dr. Jacco Bomhoff for his helpful comments and suggestions.

All shortcomings remain the Photo: www.singaporelaw.sg author’s own.

“It is the function of the rules of law to govern legal relations. But what is the extent or sphere of their authority?...The force and import of this question becomes apparent when we contemplate the nature of positive law, which does not happen to be one and the same all over the world…It is this diversity of positive laws which makes it necessary…to fix the limits of different positive laws in respect to one another. Only by such demarcation does it become possible to decide all the conceivable questions arising from the different systems of positive law.” – Savigny1 The question of which State’s law governs liability in a tortious, cross-border relationship has long proved a vexing one for courts and writers alike. One option is that the law of the country in which the action is brought (lex fori, or the law of the forum) should be the governing law, while another is that it should be the law of the place where the tort was committed, which is where the damage was sustained (lex loci delicti). Yet another option, which was the traditional English common law approach, is a combined consideration of the two laws in the double actionability rule. This is the same methodology implemented in Singapore. This essay will first explain the functioning of this traditional approach, before proceeding to demonstrate that it is undesirable, due to concerns of justice and comity. Utilising comparative law principles, the alternative approaches embodied in the American Governmental Interest Analysis will be examined for its suitability to Singapore. This essay will conclude that while the methodology of interest analysis is incompatible with the Singapore context, the theory behind the method can teach important lessons on improving our rule-based approach. With 2015 marking the 50th year since the passing of Professor Brainerd Currie, the man largely responsible for the American choice-of-law revolution, scholars in the Association of American Law Schools Section on Conflict of Laws are taking the opportunity to reflect on the successes and failures of the revolution, and more importantly address the question of the prospective trajectory of American conflict of laws. Perhaps the time is apt for Singapore to engage in similar contemplation as well.

TRADITIONAL ENGLISH APPROACH AND SINGAPORE’S POSITION In the 19th century case of Phillips v. Eyre,2 Willes J said in his judgment: “First, the wrong must be of such a character that it would have been actionable if committed in England…Secondly, the act must not have been justifiable by the law of the place where it was done”.3 This rule was subsequently revisited by the House of Lords in Boys v. Chaplin,4 where Lord Wilberforce’s speech is authoritative (as accepted by subsequent case law)5 on the reappraisal of the rule. Firstly, he confirms that the rule lays down not a test of whether the court has competent jurisdiction, but a rule of choice of law. This is because the question of jurisdiction is distinct from that of choice of law.

Then, regarding the first part of the rule, “actionability as a tort under and in accordance with English law is required”.6 As for the second part of the rule, “a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed [emphasis added]”.7 Hence, for the 1

By Wieacker in his Privatrechtsgeschichte der Neuzeit, in the translation by Weir (as A History of Private Law in Europe, Clarendon Press, Oxford, 1995) 304 2 [1870] LR 6 QB 1 3 [1870] LR 6 QB 1, 28-9 4 [1971] AC 356 5 Church of Scientology of California v. Commissioner of Metropolitan Police (1976) 120 Sol J 690 6 [1971] AC 356, 387 7 [1971] AC 356, 389

purposes of the second limb of the rule, ‘justifiable’ should not be equated with ‘innocent’. Instead, the focus of the requirement is whether the act results in civil liability arising under the law of the place of the wrong. This is the rule of double actionability.

However, an exception to the general rule exists. As per Dicey, Morris and Collins’ formulation, “a particular issue between the parties…may be governed by the law of the country which with respect to that issue, has the most significant relationship with the occurrence and the parties”.8 Courts will be slow to apply this exception, and “the general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred”.9 In applying the exception in favour of English law, Johnson v. Coventry Churchill International Ltd10 clarifies that there must be nothing in the policy underlying the foreign rule that was ever intended to have any application to persons not resident in that foreign country, or in denying the application of the English rule. Secondly, England must be the ‘country with the most significant relationship with the occurrence and the parties’.11 Therefore, as per Red Sea Insurance Co Ltd v. Bouygues SA,12 the result is that in the exceptional case the court might apply the lex loci to the exclusion of the lex fori, or vice versa. The resultant rule has been aptly termed by Prof Adrian Briggs as “one of double actionability subject to double flexibility”.13 The Singapore Court of Appeal in Goh Chok Tong v. Tang Liang Hong14 and Parno v. SC Marine Pte Ltd15 accepted these English common law rules, inclusive of the exceptions, as the applicable choice of law rules in Singapore for torts committed overseas.

Most recently, Andrew Phang JA in Rickshaw Investments Ltd and another v. Nicolai Baron von Uexkull16 once again reaffirmed the application of English common law, also emphasising that the exception should not be applied unless the lex fori or the lex loci delicti were purely fortuitous and the application of the ‘double actionability rule’ would result in injustice and unfairness. In doing so, he voiced support for the development of this exception in Red Sea Insurance, saying it was “consistent with the tenets of globalisation and internationalisation that now accompany the central idea of comity (together with the corresponding need to eschew parochialism)”. Therefore, acts done abroad are actionable torts in Singapore if they are actionable according to Singapore law as well as the foreign law of the country of the act, subject to the exception.

In prominent contrast, many other common law legal systems – most notably the UK and the US – have since abandoned the English common law approach. In the UK, common law rules on choice of law in tort (with the exception of defamation cases) have largely been superseded by the Rome II Regulation.17 Before the Rome II Regulation, common law rules had previously been replaced by Part III of the Private International Law (Miscellaneous Provisions) Act 1995, which now only applies to certain limited situations. We will now examine the rules as laid down in the 1995 Act, since reform proposals in Singapore draw heavily from these rules.

8 Collins et al, Dicey, Morris and Collins on The Conflict of Laws (London, Sweet & Maxwell, 14th edn, 2006) para 35R – 123 (Rule 235(3)) 9 Lord Wilberforce in Boys v. Chaplin [1971] AC 356 10 [1992] 3 All ER 14 11 [1992] 3 All ER 14, 25 12 [1995] 1 AC 190 13 Briggs, ‘The Halley: Holed, but Still Afloat?’ (1995) 111 LQR 18 at 21 14 [1997] 2 SLR 641 15 [1999] 4 SLR 579, 36 16 [2007] 1 SLR(R) 377 17 Regulation (EC) 864/2007

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UK’S PRIVATE INTERNATIONAL LAW (MISCELLANEOUS PROVISIONS) ACT 1995

changes that reject, or at least reduce, xenophobic opinions about the worth and applicability of the law of other jurisdictions”.23

In the UK, the scope of the double actionability rule was drastically narrowed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995, such that it only applies to defamation cases. This was largely fuelled by criticisms of the inappropriateness of the dominant role played by the lex fori,18 with the Law Commission propounding that it was “parochial in appearance…subject to overruling public policy considerations”, and therefore “there is no reason why the lex fori should be applied in all cases involving a tort or delict regardless of the foreign complexion of the factual situation”. Insisting on reliance on the lex fori violates comity and diplomacy between nations, and flies in the face of the general principle of territoriality – that states have exclusive jurisdiction within its own territories. In Jensen v. Tolofson,19 where the Supreme Court of Canada similarly rejected the traditional English approach, La Forest J elaborated on the parochialism of the lex fori’s influential role in the double actionability rule. He stated that perhaps it was militated by the 19th century context, when Great Britain’s dominant position in the world could have led to the temptation to view its laws as superior to the other British dependencies and colonies. Also, it is fathomable that there was difficulty of proof of laws of far-off countries, making it more convenient for judges to refer to their own laws. However, these difficulties are largely attenuated by advances in modern communication technologies, and hence should be no hindrance to the abolition of the lex fori.

There have been indications from Singapore’s judiciary that they recognise the flaws in the double actionability approach, and therefore may be receptive to reform suggestions. As Woo Bih Li J acknowledged in Ang Ming Chuang v. Singapore Airlines Ltd,24 if the principle of territorial jurisdiction was not respected in our globalized world, and a multiplicity of state power were allowed to come into competition, then chaotic situations would result.25 In his view, this is because this involves a Singapore court defining the nature and consequences of an act done in another country. Furthermore, problems of ‘forum shopping’ could arise. When adjudicating on the same wrong, different courts where the action is brought would apply their own lex fori, and thus potentially produce different results. This would create the temptation for claimants to initiate proceedings in the country whose laws’ application would give rise to the most favourable outcome for the claimants. On the other hand, having the lex loci delicti as the applicable law would accord with legitimate expectations of the parties, who expect to be governed by the law of the place where they happen to be, in return for the concomitant legal benefits derived. Hence, Woo Bih Li J observed that if he were not bound by the Singapore Court of Appeal decision in Parno, he would have departed from the double actionability rule.

Furthermore, the common law could work injustice,20 as it puts the defendant at an unfair double advantage – the claimant could not succeed in any claim unless both the lex fori and lex loci delicti allowed for it, and the defendant could escape liability by taking advantage of any defence available under either set of laws.

Part III thus replaced the double actionability rule with a general rule, which stipulated the lex loci delicti to be the applicable law (s11), and an exception in cases where the law of the country other than the place of the wrong is substantially more appropriate (s12). In deciding whether the s12 exception applies, a comparison must be made between the connecting factors between the tort and the country whose law would be applicable under the general rule, and the connecting factors between the tort and another country. As such, the choice of law regime established by sections 11 and 12 has dropped considerations of the lex fori entirely (unless the tort is more closely connected to the forum state, under the exception in s12).

A NEW BEGINNING FOR SINGAPORE? In March 2003, the Law Reform Committee of the Singapore Academy of Law sought to highlight the difficulties with Singapore’s current approach to choice of law in tort cases. The Committee acknowledged what had already been recognised in other jurisdictions: that the requirement of actionability by Singapore law, despite the act in question being done abroad, is an anachronism, for it was formulated at a time when proof of foreign law was difficult, and therefore suspicion of foreign law was perhaps inevitable.21 Allowing such a requirement to prevail would be “inappropriate to a time of global and regional dealings,22 technological advances that increase…attitudinal

18 Hill and Chong, International Commercial Disputes (4th edn, Hart Publishing 2010) 19 (1995) 120 DLR (4th) 289 20 Law Com. No 193 (1990), para. 2.8 21 Law Reform Committee of the Singapore Law Academy, ‘Reform of the Choice of Law Rule Relating to Torts’ 31 March 2003 Para [B] 22 Law Reform Committee of the Singapore Law Academy, ‘Reform of

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The Singapore Law Reform Committee has also proposed reform of the tort choice of law rules in Singapore. In their report, they made a recommendation for the abrogation of actionability by the law of the forum. Instead, they advocated that the applicable law should be the lex loci delicti,26 with a flexible exception formulated after section 12(1) of the Private International Law (Miscellaneous Provisions) Act 1995.27 These recommendations were eventually manifested in the Torts (Choice of Law) Bill28 put forward in March 2003 (which has not been passed). This took on the Commission’s recommended general rule, along with the flexible exception mirroring section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. Hence, s6(1) of the Bill states that “If it appears, in all the circumstances, from a comparison of the [connecting factors between the tort and the state where the damage occurred, and that between the tort and another closely connected country], that it is substantially more appropriate for the applicable law…to be the law of the other country”, then the general rule is displaced in favour of the law of the other country. This exception aims to enable justice to be done in each particular case, by applying the law of the country with which the tort is most closely and significantly connected.

However, Singapore must proceed with caution if and when reforming its choice of law rules. Firstly and most strikingly, the abolition of the lex fori in the UK was not without its critics, and therefore Singapore should consider these drawbacks in its reform process. This move allowed defendants to be held liable in English courts through the application of foreign law, even though English domestic law imposed no such liability.

Critics argued that its retention served an important purpose of allowing English courts to avoid applying foreign laws which ran the Choice of Law Rule Relating to Torts’ 31 March 2003 Para [19] 23 Kirby J in Regie National des Usines Renault SA v. Zhang (2002) 187 ALR 1 at [132] 24 [2005] 1 SLR 409 25 [2005] 1 SLR 409 26 Law Reform Committee of the Singapore Law Academy, ‘Reform of the Choice of Law Rule Relating to Torts’ 31 March 2003 Para [18] 27 Law Reform Committee of the Singapore Law Academy, ‘Reform of the Choice of Law Rule Relating to Torts’ 31 March 2003 Para [25] 28 Torts (Choice of Law) Bill 2003

counter to its own ideas of justice. Reed29 illustrates this with the following example: Recalling Caparo v. Dickman,30 the House of Lords held that the auditor’s statutory duty to prepare accounts was owed to the body of shareholders as a whole, for the purposes of enabling this body to make informed decisions about the company. The duty did not extend to the purpose of enabling individual shareholders to buy shares for their own profit. Hence, there was no duty of care owed by the auditors to all those who relied on their accounts, even though harm to them as a result of such reliance was reasonably foreseeable. However, the position in New Zealand was directly contrary to this; in Scott Group v. McFarlane,31 the New Zealand Court of Appeal held that auditors do in fact owe takeover bidders a duty of care, on the basis that it was reasonably foreseeable that such bidders would rely on the audited accounts.

Drawing from these conflicting laws, a commercial tort choice of law dilemma may be postulated. If an auditor in England negligently prepares accounts for his client, and it is reasonably foreseeable that others would rely on them. These accounts are then transmitted to New Zealand. Eventually, both an English and New Zealand company rely on the accounts to their detriment. This then raises the unpalatable spectre of whether recourse can be granted in litigation in English courts, for a tort where, under the lex fori, such damages would not be recoverable. If so, it would be problematic that a foreign plaintiff could enjoy such a benefit, while an English one cannot, even though in both cases the accountant acted in England.

However, alongside the transposition of the general rule and exception as formulated in the 1995 Act, section 8(3)(a)(i) of the proposed Bill also draws from section 14(3)(a)(i) of the 1995 Act, stating that it is open to the Singapore court to dis-apply the applicable law where “it would conflict with principles of public policy”. Therefore, perhaps in the abovementioned scenario, Singapore courts may avoid the undesirability of applying foreign law by concluding that liability to a foreign plaintiff would be contrary to public policy, and thus apply the lex fori instead. In Caparo itself, the decision was greatly grounded on policy and floodgates concerns to protect the defendant from being subjected to “liability in an indeterminate amount for an indeterminate time to an indeterminate class”. This onerous would-be duty is matched by excessive rights conferred on the plaintiff, as to hold the defendant to a duty of care would be to “confer on the world at large a quite unwarranted entitlement to appropriate for their own purposes the benefit of the expert knowledge or professional expertise attributed to the maker of the statement”.32 Given that these policy reasons apply equally whether the plaintiff is foreign or not, the outcome should be the same regardless of the plaintiff ’s domicile.

Nevertheless, in the application of a public policy criterion, an “underlying tension exists”.33 It entails a judge having to resort to ruling that the otherwise applicable foreign law is contrary to English public policy. This would seem to undermine the 29 Reed, ‘The Private International Law (Miscellaneous Provisions) Act 1995 and the Need for Escape Devices’ (1996) 15 CJQ 305, 316 30 [1990] 2 AC 605 31 [1978] 1 NZLR 553 32 [1990] 2 AC 605, 621 33 Reed, ‘The Private International Law (Miscellaneous Provisions) Act 1995 and the Need for Escape Devices’ (1996) 15 CJQ 305, 315

very purpose of the abolition of the lex fori – to show respect for foreign law. Perhaps it could be reasoned that the public policy escape clause is the option that offends principles of comity to the lesser extent, being the exception rather than the norm.

Secondly and perhaps more importantly, the general rule of lex loci delicti cannot be applied indiscriminately, as there are cases in which its application would arguably be unjust. In advocating for the adoption of the 1995 Act as the framework for reform, the Singapore Law Reform Committee has been criticised34 for failing to take note of the abovementioned academic criticisms relating to the Act. Without taking into account its weaknesses, it would be an unsafe basis on which to craft Singapore’s reformed choice of law rules on tort. And to examine the weaknesses of applying the lex loci delicti, we now turn to the American governmental interest analysis.

AMERICAN GOVERNMENTAL INTEREST ANALYSIS Currie formulated interest analysis as such:35 The court must first identify the underlying policies of supposedly conflicting laws, then ask whether each state is interested in applying these policies to the case. If only one state is interested, then there is a false conflict and the interested state’s law should apply. If there is indeed a conflict of interest, then there is ‘true conflict’. If the ‘true conflict’ unavoidable, Currie’s solution was to apply the lex fori, his reason being that the weighing of the competing interests is a task “of a very high order”36 that courts lack the ability for. In contrast, the California Supreme Court in Bernhard v. Harrah’s Club37 resolved the ‘true conflict’ differently – by comparative impairment. This determines which state’s interest would be more impaired if its policy were subordinated to the other state’s policy, and applies the law of the more impaired state.

An illustration might be helpful here. The case of Babcock v.

Jackson38 involved the defendant (D) driving the claimant (C) up to Ontario, where D lost control of the car and injured C in the process. Both D and C were from New York, and C sued in New York upon their return. There was no liability for a gratuitous passenger under Ontario law, but it was otherwise under New York law. This was held to be a case of ‘false conflict’: Ontario’s guest statute has the purpose of preventing fraudulent claims by passengers in collusion with drivers, against insurance companies. The fraudulent claims to be prevented are those against Ontario defendants and their insurance companies, and not those against New York defendants and their insurance companies; Whether New York defendants are imposed upon or their insurers defrauded by New York claimants is scarcely a valid legislative concern of Ontario simply because the accident occurred there. Hence, the law of the only interested state – New York’s – was applied. In Bernhard, D, who ran clubs for drinking and gambling in Nevada, had advertised for and solicited in California the business of California residents, knowing and expecting that many California residents use the public highways leading to its clubs. Mr and Mrs Myers had driven to D’s club in response to their solicitations, and were continuously served alcohol despite obvious intoxication. As a result, the Myers collided into the Californian C’s car in California. C sues in California. Nevada law, the lex loci delicti, denies recovery against tavern keepers by third parties for injuries caused by the former by selling or furnishing alcoholic beverages to an intoxicated patron who subsequently inflicts injuries on the latter. On the 34 Tong, ‘Warnings for a New Beginning: Torts (Choice of Law) Bill’ [2005] SLJS 17 35 Currie, Selected Essays on the Conflict of Laws, 183-184 36 McClean and Beevers, Morris’ The Conflict of Laws (2009) 536 37 18 Cal. 3d 313 (1976) 38 12 NY2d 473 (1963)

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other hand, California law, the lex fori, permits recovery. D contended that Nevada had an interest in having its law applied in order to protect its resident tavern keepers like D from being subject to liability which Nevada has not imposed. On the other hand, C argued that California also has an interest in applying its own law, for the purposes of protecting all California residents and the general public from injuries to person and property resulting from the excessive use of intoxicating liquor. This is a case of ‘true conflict’, where both states have a legitimate but conflicting interest in applying its own law.

Prima facie, interest analysis appears conceptually attractive, and hence it might be said that the Singapore might benefit by adopting its methodology. In rejecting jurisdiction-selecting rules, Cavers argued39 that applying the law of a jurisdiction without considering its content inevitably leads to injustice in the particular case. Since the court is determining a controversy, not idly choosing a law, it arguably cannot choose wisely without considering how that choice will affect that controversy. In contrast, the ‘double-actionability’ rule and the proposed general lex loci delicti rule are both seemingly content-blind, selecting the governing law based on territorial contacts. Furthermore, a corollary of interest analysis methodology is greater flexibility – physical contacts are relevant only in showing whether a state is interested, thus adapting to each factual scenario.40 In contrast, rigid jurisdiction-selecting rules mean that the connection between the law applied and the dispute is sometimes fortuitous.41 Hence, the advantages of content-oriented law selection and greater flexibility might lead one to argue that Singapore conflict of laws should adopt the interest analysis methodology.

However, interest analysis is problematic as well. Fawcett points out that its methodology assumes that underlying policies of laws are clearly identifiable by judges.42 However, the purpose may not always be clear, whether it is because laws are often the result of compromise between opposite arguments in the legislature,43 or because each rule of law is an embodiment of conflicting social, economic, political and legal pressures.44 As a result, there is the danger of inconsistency in interpretation. Such inconsistency has surfaced even in the American inter-state context – while the Ontario guest statute’s purpose was described in Babcock v.

Jackson45 as protecting insurance companies from fraudulent claims and collusion, it was described in Neumeier v. Kuehner46 as manifesting the idea that ‘ungrateful guests should not bite the hand that feeds them’.47 This inherent uncertainty is criticised by Leflar, who calls the attempt to ascertain policies and interests through construction a “pseudo-interpretive process”48 that “invites manipulation”,49 since a variety of reasons can often be conjured up to support any rule of law.

Furthermore, these difficulties are exacerbated when applied to the Singaporean context where conflicts are international rather than interstate. If Singapore adopts the interest analysis methodology, Singaporean courts will have to make policy and 39 McClean and Beevers, Morris’ The Conflict of Laws (2009) 531 40 Fawcett, ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ 31 ICLQ 150 (1982), 152 41 ibid 42 Fawcett, ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ 31 ICLQ 150 (1982), 152 43 Fawcett, ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ 31 ICLQ 150 (1982), 152 44 Fawcett, ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ 31 ICLQ 150 (1982), 152 45 12 NY2d 473 (1963) 46 285 NE2d 454 (1972) 47 ibid, at 455 48 Leflar, American Conflicts Law (3rd ed 1977) 185-88 49 Jeunger, ‘Conflict of Laws: A Critique of Interest Analysis’, 21 Am J Comp L 1 (1984) 31

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interest assessments in relation to laws of foreign countries, whose legal system and law-making process differ greatly from their own.50 The fact that this methodology “invites manipulation” means that the assessment of policy conducted through the lens of legal perceptions held in the forum (what Carruthers et al51 term a “forum-oriented” assessment), problematic in the international context. It must be acknowledged, however, that Singaporean judges are arguably suitably placed to adopt the teleological technique that interest analysis relies on to distil policies from laws. American lawyers are familiar with thinking in terms of the policies behind their laws,52 and American courts often have access to interpretation aids, such as looking at failed attempts to repeal a statute, law reform reports, or explanatory preambles. Similarly, with Singapore’s legislative reform to statutory interpretation via the enactment of the Interpretation (Amendment) Act 1993, legal practitioners in Singapore are rather accustomed to adopting the technique required for interest analysis. Section 9A(1) of the 1993 Act states that an interpretation that would “promote the purpose or object underlying the written law…shall be preferred” to some other interpretation, thus evidently endorsing53 the use of the purposive approach. Section 9A(2) allows the use of extrinsic materials, such as explanatory statements or records relevant Parliamentary debates, to confirm or ascertain the underlying purpose, thus further supporting the purposive approach. But with the inherent inconsistencies of interest analysis methodology, it still cannot be the device that produces the final choice of law result in Singapore. Currie’s words regarding the weighing of interests equally apply against the determination of policies: “it is a function that the courts cannot perform effectively, for they lack the necessary resources [and legitimacy]”.54 Nevertheless, a distinction can be made between methodology and theory, and this essay submits that while adoption of the interest analysis methodology is unviable, the underlying theory could be helpful. Interest analysis identifies when the forum and foreign states are interested, and thus will largely militate against the lex fori’s dominant role in the current approach. In pointing the way forward, it also serves to identify flaws in Singapore’s proposed regime, and propose reforms within its rule-based framework.

The general lex loci delicti rule may not produce defensible results in three situations.55 The first problematic application, where the event giving rise to damage and the damage occur in different states, and the state where injury occurred prescribes a higher standard of conduct for D or financial protection for C, then application of that state’s laws may be unfair to D if the damage occurring in that state was unforeseeable. Perhaps the interest analysis as deployed in Bernhard v. Harrah’s Club56 holds a valuable lesson. In Bernhard, the court held that California cannot reasonably effectuate its policy of protecting victims by allowing recovery if its laws could not extend to the defendants, who regularly sell alcohol to California residents, where it is reasonably certain that these residents would return to California still intoxicated. This essay submits that this element of foreseeability is reflected in the court’s conclusion that not applying California’s law would leave it comparatively more 50 McClean and Beevers, Morris’ The Conflict of Laws (2009) 158 51 Carruthers et al, Cheshire, North and Fawcett: Private International Law (14th ed 2008) 30 52 McClean and Beevers, Morris’ The Conflict of Laws (2009) 156 53 Goh Yihan, ‘Statutory Interpretation in Singapore’, (2009) 21 SAcLJ 107 54 Currie, Selected Essays on the Conflict of Laws, 162 55 Symeonides, ‘Rome II: A Missed Opportunity’ 56 American Journal of Comparative Law (2008) 173, 190 56 18 Cal. 3d 313 (1976)

impaired. Applying this to the proposed general lex loci delicti rule would thus reveal the need for a qualification to correct potential unfairness in ‘true conflict’ cases, with the qualification possibly being a foreseeability requirement.

The second and third problematic applications of the general lex loci delicti rule involves false conflicts. This could occur in a scenario similar to the first, where the event giving rise to damage and the damage occur in different states, except where the state where the event giving rise to the damage occurred prescribes a higher standard of conduct compared to the state where damage occurred. This is a ‘false conflict’, where the state of conduct is interested in applying its stricter laws to regulate D’s activity occurring there (generally for deterrence), while the state where the damage occurred has no interest in protecting D by applying its laxer laws. Yet, the general lex loci rule would result in application of the disinterested state’s laws. The third problem arises in a Babcock v. Jackson-type case, where law of D and C’s common domicile favours recovery more than the state of conduct and injury. Applying the lex loci would be applying the law of the disinterested state. However, this is a classic false conflict paradigm, where only the state of the common domicile is interested in having its loss-distributing law applied, in order to govern the reparation between the two parties.

day for Singapore. The international profile of Singapore law is ever-increasing, particularly with the launching of the new Singapore International Commercial Court as part of a strategy to place Singapore as Asia’s dispute resolution hub. There is thus no better time to re-examine our choice of law rules regarding tort cases.

Hence, interest analysis theory teaches Singaporean conflict of laws how to identify false conflicts, and thus how to avoid them. Interest analysis theory also reveals that the proposed escape clause might be improved on by allowing issue-by-issue analyses instead. The “all-or-nothing” approach of the proposed escape clause renders it mostly unavailable, especially because it is phrased in geographical terms. Therefore, it is unhelpful in curing the deficiencies of the general rule in recognising and solving false conflicts. Symeonides raises the example of a tort occurring in France, causing the death of an English tourist, where the issue is who is entitled to wrongful death damages.

French law allows for wider compensation than English law.

Under Art 4(1), French law applies, and Art 4(3) will not save the situation since the tort as a whole is not manifestly more connected with England, even though England is most closely connected to this issue. Interest analysis reveals the false conflict – France is uninterested, while England is, since such rules reflect society’s perception of how one’s death affects one’s survivors, and which of his survivors require compensation.57 CONCLUSION Indeed, even in America Currie’s interest analysis methodology has largely been abandoned (except in two states), for going too far by embracing flexibility to the exclusion of certainty. The American conflict-of-laws revolution that started fifty years ago has distilled many valuable lessons, but its methodology cannot be transplanted to Singapore. The usefulness of interest analysis to Singapore is thus limited to identification of true or false conflicts. It must be admitted that even in that exercise, the uncertainties of policy-identification may create some difficulties at the borderline. Nevertheless, it identifies the obvious flaws in the current and proposed system, allowing for rejection of the current approach and adjustment of the proposed approach to provide sufficient exceptions to the general rule. Such exceptions will provide greater flexibility within the certainty of the rulebased framework, thus are suitable to the international context.

As the sun sets on the American conflict-of-laws revolution with the Third Conflicts Restatement in November 2014, which sought to give clearer guidance to courts, it is the dawn of a new 57 Symeonides, ‘Rome II: A Missed Opportunity’ 56 American Journal of Comparative Law (2008) 173,, 201

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ADR IN SINGAPORE ALTERNATIVE DISPUTE RESOLUTION IN THE SINGAPORE LEGAL SYSTEM

By David Lui This article examines how Singapore has efficaciously assimilated the processes of ADR into its legal system through the conjoined efforts of the legislature, judiciary, and members of the legal profession.

Photo: chanler.com/files/fca_contract_fraud_8.jpg

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This article aims to demonstrate the operative entrenchment of Alternative Dispute Resolution in Singapore’s legal system. It will do so by (1) outlining the obstacles faced by Asian countries in successfully integrating ADR into their respective jurisdictions, (2) demonstrating how Singapore has managed to institute widespread acceptance of ADR through legislation as well as judicial support. It will then conclude by commenting on (3) the eminence of ADR in Singapore and highlight favourable effects it has on our legal system.

For the purposes of this article, the two main branches of ADR will be discussed: Arbitration and Mediation.

Community Mediation will not be discussed because this is not within the scope of how ADR relates to the courts.

I. ALTERNATIVE DISPUTE RESOLUTION IN ASIA The growth of Alternative Dispute Resolution (ADR) in Asia has been marked by spurts and stutters.1 This comes as a surprise as Asia, notwithstanding its assemblage of cultures, nominally places the value of ‘saving face’ over the adversarial nature of settling disputes in courts. The region is understood to be distinct in its traditions of informal arbitration and mediation, historically conducted by respected elders of the community.

Yet, this customary understanding of adjudication has met the institutionalisation of ADR rather unenthusiastically. This is despite a rise in governmental support for ADR as the alternative and beneficial means to litigation in resolving disputes that arise from commercial and societal relations.

This may be attributed to a number of factors: namely the rather makeshift nature of legislation that attempts to integrate ADR into the jurisdiction and the lack of judicial support. In Sri Lanka, the Mediation Board Act of 1998 precludes the release of material to entities beyond the mediation process.2 This obviously frustrates the confidential character of ADR. In Hong Kong, its Mediation Ordinance is elementary at best, without other pieces of legislation or independent mediation bodies to prop up its purchase. It is speculated that it will most probably be put through an exhaustive series of amendments, but that remains to be seen.3 The judicial support for ADR is evidentially lacking; where majority of countries in Asia merely refer disputes such as family matters to mediation or arbitration.4 Additionally, the intent of supplementing litigation with ADR must be instituted with the right motives. Asian countries are notable for their considerable “backlog of cases”.5 In China, more than 200,000 cases were pending in 2012, whilst in India, it has been recorded that each judge has an average of 2147 cases at any one point in time.6 The move for ADR as a measure to relieve the courts of this innumerable backlog may be counterintuitive. Instead of arbitrating or mediating based on the cost effectiveness and the interests of the parties, the efficacy of ADR may be stunted by an over emphasis on efficiency.

These factors primarily mean that ADR receives a dampened presence in these jurisdictions, and litigation is still perceived as the most conventional, albeit undesirable means of resolving contentious disputes. However, the converse cannot be taken as contributing to the certainty of successful implementation.

1 Kim Shi Yin, ‘From “Face-Saving” to “Cost Saving”: Encouraging and Promoting Business Mediation in Asia’ (2014) 32 Alternatives to the High Cost of Litigation 158, 158 2 Id., 159 3 Id. 4 Id. 5 Id., 160 6 Id., 159

It has been asserted that if ADR is promulgated too forcefully, there is a probability that it may annul the advantages of it being an ‘alternative’ means to litigation.7 As such, the confidential, cost effective and time saving qualities of ADR as an alternative to litigation may eventually be perceived as unsatisfactory and coercive.

The integration of ADR into any country’s legal system therefore calls for a clear delineation of its definition and functions, before its benefits may be balanced against public perception.

Consequently, the issue is not whether ADR is relevant to Asia.

This goes without saying. Rather, the issue turns on whether ADR may be operatively integrated into the country’s legal system. This has to be effected with meticulous forethought. A measured approach must be taken to institutionalising its forms without eroding its primary function as the ‘alternative’. At the same time, tact is required. In as much as ADR’s public utility is dependent on its entrenchment in the legal system, its expansion must not be perceived as an affront to the legal profession.

II. ADR AND THE SINGAPORE LEGAL SYSTEM In this light, the rapid development of ADR in Singapore deserves commendation. The fact that it has taken an entrenched foothold demonstrates how the different branches of the government may act in unison with statutory bodies such as the Singapore Academy of Law to perpetuate a permanent augmentation to the utility of the Singapore legal system. This segment of the article will first outline how this was generically achieved through support from the government and the judiciary. It will then outline the various mechanisms that have been put in place to achieve this, in respect to arbitration and mediation.

The claim that Singapore’s success in this field is largely attributable to its size and “centralised court system” is too broad an explanation.8 Rather, Singapore’s rapid implementation of ADR must be examined with regards to structural changes and policy initiatives, in order to better appreciate the robustness of our legal system.

The initiative was first spearheaded in the 1990s by the then Chief Justice Yong Pung How, who sought to assimilate alternatives to litigation within the court system.9 Changes were made to the civil procedural laws of the country where, inter alia, pre-trial settlement conferences became part of the court process and court-hearing fees were charged on a dayto-day basis.10 This was complemented by the establishment of the Singapore International Arbitration Centre (SIAC) in 1991 by the Singapore Law Academy, and further bolstered by the enactment of the International Arbitration Act 1995, Mediation Centres Act 1998, and the Arbitration Act 2001.

ARBITRATION Not unlike litigation, arbitration is premised on the “resolution of a dispute between two or more parties by a neutral decision maker referred to as an arbitrator.”11 This arbitrator, unlike a judge in the adjudicatory process, is selected by the parties 7 Id. 8 Alexandra Otis, ‘A Quiet Revolution: How Judicial Mediation is Changing the Face of the Traditional Court System in Canada and Singapore’ [2007] Asian J. Mediation 28, 46 9 Id., 47 10 Lawrence G S Boo, ‘The Framework and Practice of ADR in Singapore’ (2009) 1 < http://aseanlawassociation.org/9GAdocs/w4_Singapore.pdf > accessed 15 January 2015 11 Joel Lee, ‘The ADR Movement in Singapore’ in Kevin YL Tan (eds), The Singapore Legal System (Singapore: Singapore University Press 1999) 414, 416

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and commonly possesses a degree of “expertise” on the dispute in question.12 The agreement for a matter to be raised for arbitration is voluntary and parties are normatively at liberty to fix the “procedural and substantive rules” surrounding the arbitration.13 The decision taken by the arbitrator, the “award”, is “binding and final” on the parties but is still not beyond the ambit of review from the courts.14 The attractiveness of arbitration, especially in commercial disputes, lies mainly in its confidentiality, the shortening of time taken to resolve disputes, and the curtailment of costs. The key to its effective implementation therefore turns on its accessibility and the level of autonomy granted to the disputants.15 An added difficulty lies in the mistaken slur that unregulated arbitration may function as a separate means of adjudicating disputes in a way inconsistent with the law.16 Arbitration’s legitimacy as the alternative means to litigation in Singapore was therefore ensured through firstly, well-defined legislation delineating its operation, secondly, its grafting into the legal system with the active support of the judiciary, and thirdly, the establishment of arbitral institutions such as the SIAC. The legislation providing for arbitration in Singapore is found in two separate legal regimes:17 the International Arbitration Act 1995 (IAA) and the Arbitration Act 2001 (AA). The former governs international arbitration whilst the latter governs domestic arbitration. This article will discuss the clarity within the two Acts. Both the IAA and the AA “make provisions for enabling a disputant to gain access to an arbitral forum”, whilst preserving party autonomy and the voluntary element in arbitration.18 Section 2(1) of the IAA and Section 4(3) of the AA stipulate that the arbitration agreement “shall be in writing”.19 This means that there must be a clear agreement to arbitrate. An arbitration agreement therefore cannot be silently imposed on one party “without the clear intention of the other”.20 Both parties must consent to raise the dispute in question to arbitration.

In addition, if an arbitration agreement has been written as a clause within a contract, it will be ‘treated as independent of the other terms of the contract’.21 Therefore, even if the arbitrator renders a contract void, it does not consequentially mean that the arbitration clause is void.22 This dualistic approach sidesteps the undesirable coercive doctrine discussed above. There are instances where an agreement to arbitrate, if unclear, may not be enforced. There are other instances where the agreement to arbitrate, if called into question, will be compelled by the courts, thereby diverting possible overriding intention of one party to thwart arbitral agreements by taking direct legal action23 This turns on the interpretation of the legislation in question.

Ultimately, the Acts have allowed the legal system to assume a supportive and objective role in the institution of arbitration without undermining its premise as a process undertaken 12 Id. 13 Id., 417 14 Evelyn Ai Lin Teo and Ajibade Ayodeji, Abinu, ‘Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration’ (2007) 133 J. Prof. Issues Eng. Educ. Pract. 148, 154 15 Id., 150 16 Joel Lee, ‘ADR and Mediation – The Future of Legal Practice’ in Tang, Hor & Koh (eds), The Practice of Law (Singapore Lexis Nexis 2011) 77, 81 17 Supra note 10, 10 18 Supra note 14, 150 19 Id., 150 20 Id., 151 21 Supra note 10, 15 22 Supra note 14, 151 23 Id.

25

voluntarily.

Further, the judiciary have been observed to be supportive of ‘the wider institution of arbitration’.24 This is evident in their regard for party autonomy in arbitration through the “judicial philosophy” of “minimal curial intervention”.25 Even as the IAA and AA have provided courts with the function to remedy dissatisfactions with arbitral awards, the grounds for review are limited in reach.26 A dissatisfied party must first apply to an arbitral tribunal ‘to seek correction of the award.27 If the appeal does reach the High Court, the Court is not typically, inter alia, “concerned with errors of judgement” with regards to law or fact.28 Instead, the Court will, under the provisions set forth in the IAA and AA, only consider whether the award was made in breach of natural justice or contrary to public policy.29 This “minimal curial’ stance, coupled with the courts” ability to stay legal proceedings in the light of an enforceable arbitration agreement, allow for the courts to take on a dualistic role when it comes to regulating arbitration as an ADR mechanism.

This purposive function therefore demonstrates how a ‘right equilibrium’ has been achieved between legitimising arbitration whilst ensuring party autonomy.30 Arbitration in Singapore has been institutionalised without being overtly coercive.

The integration of arbitration in Singapore would be incomplete without the existence of arbitral institutions. The SIAC remains the primary source of international and domestic arbitration in Singapore.31 Located in Maxwell Chambers, the SIAC presides over arbitration cases with its own Rules of Arbitration that are, in turn, accepted by the disputants in their relevant arbitration agreements.32 In addition to these rules, the SIAC may also arbitrate according to the UNCITRAL Model Law, a ubiquitous foundation of law that has been applied in over 60 jurisdictions.33 From 2003 to 2013, the SIAC was recorded to have handled a total number of 619 cases. Other instances of adjudication being privatised exist in the bodies of the Singapore Institute of Arbitrators, industry-specific providers such as the Singapore Chamber of Maritime Arbitration and private service providers such as the Chartered Institute of Arbitrators.34 The cumulative effect of these three factors effectuates a widespread acceptance of arbitration in the local legal climate. By retaining its voluntary character whilst providing for the courts to act in a capacity to enforce arbitral boundaries, arbitration exists in tandem with the legal system as a collaborative rather than antagonistic force.35 Arbitration is therefore well situated within the options open to disputants for the resolution of disputes. Its significant dependence on the legal framework confers legitimacy to its mechanisms whilst the successful presence of arbitral institutions help maintain the notion that an ‘out of court’ settlement has been reached.

24 Andrew Phang, ‘Alternative Dispute Resolution and Regional Prosperity – A View From Singapore’ (2014) 2 < https://www.supremecourt. gov.sg/data/doc/ManagePage/5522/China-ASEAN%20Justice%20Forum%20 -%20ADR%20and%20Regional%20Prosperity%20(Final)%2011092014%20 (Phang%20JA)%20highlighted.pdf > accessed 15 January 2015 25 Id. 26 Supra note 14, 154 27 Id. 28 Supra note 24 29 Id. 30 Id., 3 31 Supra note 11, 428 32 Supra note 10, 13 33 Supra note 24, 5 34 Supra note 11, 430 35 Supra note 24 at 2

MEDIATION Mediation is the process where a neutral third party, referred to as the mediator, assists the parties to resolve their disputes.36 Mediation differs from arbitration in two ways. Firstly, even as the assistance offered may be varied according to the type of mediation, the neutral third party “has limited or no authoritative decision-making power”.37 The mediator therefore cannot “impose an outcome on the parties”.38 Secondly, mediation is non-adversarial. Arbitration still employs an adversarial take on adjudication, where the rights and positions of the parties fall to be determined by the arbitrator. Mediation on the other hand, is premised on the parties voluntarily coming to an agreement on the outcome of the dispute. This agreement is binding an enforceable as a contract. Mediation has three models: facilitative, evaluative and transformative.39 Facilitative mediation functions as a “win-win” model.40 The dispute is re-orientated as a “problem to be solved with the parties being allies”.41 The facilitative model emphasises the interests rather than the rights or positions of the parties.42 Summarily, the position or rights is defined as what the parties ‘want’ whilst the interests is defined as ‘why’ the parties want such an outcome.43 In this model, the mediator is present to facilitate the negotiations process by “assisting the exchange of information, the clearing up of miscommunication and the generation of options.”44 Evaluative mediation has more of a legal bend to its practice. The mediator is often a “legally trained person or a former judicial officer” and facilitates the process by evaluating the “likely outcome” of the dispute if it were to be referred for litigation.45 This model is often used by parties who have agreed that the legal positions will eventually be determined in the courts, but wishes not to engage in costly court proceedings. Hence the mediator’s assessment is used as a “basis for negotiation”.46 At the same time, the mediator may use his assessment “to assist and persuade parties to a compromise on the dispute”.47 Transformative mediation emphasises the process as one that empowers the parties to recognise the opposition’s perspectives.

Mutual recognition and “moral growth” are therefore seen as desirable outcomes of the process.48 On analysis, mediation possesses the advantages of considerably reducing time and costs when compared to the adversarial process of litigation and the quasi-litigious nature of arbitration.49 However, it is not without certain rehearsed criticisms. Firstly, the traditional legal education is diametrically opposed to mediation. Legal training instructs that legal professionals think in “terms of rights and liabilities”.50 The adjudication process is an adversarial one, which takes place in the courts where there is a winner and loser under the law.51 Secondly, lawyers may see 36 Supra note 16 at 79 37 Supra note 11 at 418 38 Supra note 16 at 79 39 Supra note 11 at 418 40 Id. 41 Id. 42 Id. 43 Lim Lei Theng and Joel Lee, ‘A Lawyer’s Introduction to Mediation’ (1997) 9 SAcLJ 100, 105 44 Supra note 11 at 418 45 Supra note 43 at 107 46 Id. 47 Supra note 11 at 418 48 Supra note 43 at 107 49 Supra note 16 at 79£ 50 Id., 80 51 Id.

mediation as a diversionary process that subtracts from what they could have earned financially.52 The integral status that mediation enjoys in our legal system was achieved through firstly, the assimilation of mediation facilities into the fabric of the courts and the community, and secondly, an open-minded judiciary keen on transforming the legal system.

In the courts, settlement conferences, known as Court Dispute Resolution (CDR), were introduced in 1994 and the Court Mediation Centre was established in 1995, later to be renamed the Primary Dispute Resolution Centre (PDRC) in 1998.53 The settlement conferences, conducted by the PDRC, extend to the settlement of all civil actions and come at no cost to the parties.54 These conferences are voluntary and parties may utilise CDR at “any pre-trial stage of the proceedings” by making on oral or written request.55 The mediation model employed here is an amalgam of evaluative and facilitative mediation.

A district judge assumes the role of settlement judge as the mediator and employs neutral evaluation of the parties’ rights and liabilities whilst directing for a settlement derived from the parties’ interests rather than legal positions. The PDRC may also conduct settlement conferences in the form of ‘MediationArbitration’ (Med-Arb), where the remaining issues not settled will be resolved in arbitration. All conferences are held within chambers with the intention of parties not needing to pay for the fees of using the courtroom. Usually, the settlement conference is able to commence 30 days upon request but if required, a settlement conference may be scheduled within 24 hours.56 As voluntariness forms the premise of any ADR, parties are allowed to opt out at any stage of the process.57 Additionally, the confidentiality of the information shared during mediation is also ensured. The Rules of Court Order 34A r.7 provides that facts disclosed during the conference will not be communicated to the court should the matter continue as a trial.58 Therefore, the preservation of confidentiality and voluntariness, coupled with the integration of mediation processes within the court system, allow for a flexible non-coercive approach for parties seeking a channel directed away from litigation. Likewise, this entrenchment of CDR within the court process advertently encourages both lawyers and their parties to contemplate the possibility of early settlement.

The judiciary’s role in mediation’s development in the courts cannot be overstated. Unlike private mediation undertaken at a community level, the mediators in CDR are experienced district judges.59 This judicial presence early on before the matter goes to trial lends a telling validity to mediation’s status as a convention for dispute resolution rather than a back channel antagonistic to the courts. Further, the judiciary play an active role in referring legal actions to CDR after the commencement of a legal action in the State Courts: Registrars, at the point of summons for directions, will ascertain whether the case is suitable for referral to the PDRC whilst district judges may do so during the pretrial management of cases that have been set down for trial.60 Moreover, in accordance with the Rules of Court, when the court 52 Id., 81 53 Supra note 10 at 3 54 Id., 4 55 Supra note 8 at 49 56 Id. 57 Id., 50 58 Supra note 10 at 2 59 Marvin Bay and others, ‘The Integration of Alternative Dispute Resolution within the Subordinate Courts’ Adjudication Process’, (2004) 16 SAcLJ 501, 511 60 Id., 510

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exercises its discretion to award costs, it may take “into account parties conduct in relation to any attempt at resolving a matter through mediation or other means of dispute resolution”.61 This ultimately fosters an unconcealed incentive for parties and lawyers to consider mediation as practical alternative to litigation.62 The fact that CDR is “evaluative, court centred and judge-driven” naturally compels lawyers to appreciate mediation’s eminent status in the civil justice system.63 Ultimately, CDR differentiates itself from other forms of ADR as it is “integrally woven directly” into the court system such that it will be difficult to avoid unless expressly intended.64 This applies for parties and lawyers alike.

III. CONCLUSION As arbitration and mediation differ in theory, it is notable that their incorporation into the legal system has taken differing courses. The judiciary’s “minimal curial” but legally empowered approach has enabled arbitration to mature as a liberal form of dispute resolution.65 Arbitration’s inveterate position in the legal system augments Singapore’s position as the arbitration hub of Asia. Likewise, the judiciary’s forthright presence in instituting mediation has allowed for it to pervade the legal system, making “justice more accessible, cost and time efficient”.66 All in all, the summative effects of mediation and arbitration reverberate through the Singapore legal system. As ADR continues to expand as a “professional service industry”,67 the founding of quasi-governmental and private arbitration and mediation bodies mean that Singapore is well placed to carry the mantle of the Asian pivot towards a ‘mature and arbitration friendly legal infrastructure’.68 As aspiring legal professionals hoping to return to Singapore to practise, it will be anachronistic to assume that the Singapore legal system has stood still in its competency of dispensing justice speedily and responsively.

FURTHER READING For further information regarding ADR Processes in Singapore, see below: 1. Loong S O, ‘Laws of Singapore: Mediation’ (2009) < http://www.singaporelaw.sg/sglaw/laws-of-singapore/ overview/chapter-3 > 2. Boo L, ‘Laws of Singapore: International and Domestic Arbitration in Singapore’ (2009) < http://www. singaporelaw.sg/sglaw/laws-of-singapore/overview/ chapter-4 > 3. The Singapore International Arbitration Centre, < http://www.siac.org.sg/ >

61 62 63 64 65 66 67 68

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Supra note 24 at 4 Id. Supra note 59 at 514 Id. Supra note 24 at 2 Supra note 8 at 52 Supra note 24 at 5 Supra note 24 at 5

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DOWNLOADING A CAR: IMPLICATIONS IN THE ADVENT OF 3D PRINTING

By Ian Lam INTRODUCTION The science fiction dream of being able to synthesize objects on demand may not actually be very far off. The 3D printing industry continues to make rapid development, and has picked up a large amount of traction in the past few years. The applications of 3D printing are boundless: its current use ranges from industrial processes to fashion and medical fields. Recent usage includes creating parts for jet engines,1printing blocks for the quick assembly of concrete buildings,2 and manufacturing customised skull implants.3 The capacity to print high quality customised objects creates the potential for enormous cost savings – a prime example being the reduced cost of producing a myoelectric prosthetic limb from tens of thousands of dollars to a mere $350.4 While 3D printing has enormous benefits for manufacturing industries, its largest potential for change lies ultimately in how it will affect the average consumer. Bringing a 1 Andrew Zaleski, ‘GE’s bestselling jet engine makes 3-D printing a core component’ (Fortune, 5 March 2015) <http://fortune.com/2015/03/05/geengine-3d-printing/> accessed 26 March 2015 2 Michelle Starr, ‘World’s first 3D-printed apartment building constructed in China’ (CNET, 20 January 2015) <http://www.cnet.com/uk/news/ worlds-first-3d-printed-apartment-building-constructed-in-china/> accessed 26 March 2015 3 James Vincent, ‘3D printed skull replacement implanted for the first time ever’ (The Independent, 27 March 2014) <http://www.independent.co.uk/ life-style/gadgets-and-tech/3d-printed-skull-replacement-implanted-for-thefirst-time-ever-9218341.html> accessed 26 March 2015 4 Jen Owen, ‘“Limbitless” – 6 Year Old Gets $350 3D Printed Myoelectric Arm.’ (Enabling The Future, 26 July 2014) <http://enablingthefuture. org/2014/07/26/limbitless-6-year-old-gets-3d-printed-myoelectric-arm/> accessed 26 March 2015

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3D printer into the home will allow consumers to shrink the supply chain, eliminating the manufacturer and distributor. The consumer can simply pick out an object, print it on the spot, and have it ready to use. The convenience of 3D printing creates immense potential for intellectual property infringement. One recent example involved a 3D printed mobile phone dock modelled after a prop in the popular television series, Game of Thrones, which was barred from sale after HBO asserted rights to the product.5 In the advent of 3D printing, this article seeks to assess the intellectual property legislation in Singapore and determine whether it sufficiently caters to further development of the industry.

HOW DOES IT WORK? The process in which an object is created in a 3D printer is similar to how one might use a traditional two-dimensional printer. An object is first modelled in a computer-assisted design (CAD) file, which may be done manually or through the use of a 3D scanner.6 Once complete, the CAD file is then prepared for the printer by digitally slicing the model into multiple layers.7 The information in each layer is then used by the printer to construct the object, in a manner much like the way an inkjet printer functions, in order to print a three-dimensional object 5 Nathan Hurst, ‘HBO Blocks 3-D Printed Game of Thrones iPhone Dock’ (Wired, 13 February 2013) <http://www.wired.com/2013/02/got-hbocease-and-desist/> accessed 28 March 2015 6 Stephanie Crawford, ‘How 3-D Printing Works’ (HowStuffWorks, 2015) <http://computer.howstuffworks.com/3-d-printing.htm> accessed 26 March 2015 7 Ibid.

Image: Flickr CC @ Christopher Michel

from the bottom up by depositing material layer by layer.8 3D PRINTING AND INTELLECTUAL PROPERTY RIGHTS Widespread adoption of consumer 3D printers into households will definitely change the way we consume goods, and will also mark a milestone in the digital revolution. While digital reproduction has largely been limited to sound, images, and documents, the adoption of 3D printing will bring about widespread digitisation of three-dimensional objects. This can range from toys to jewellery and even functional objects, such as a pair of scissors. In an age where a digital file containing the model of a desired object can simply be downloaded and then printed at home, the potential for infringement of intellectual property rights, which previously had been limited only by extensive manufacturing processes, is vastly increased.

Instances of intellectual property infringement regarding 3D printing have already begun to take hold on the Internet, especially where copyright is concerned. Including the incident over the 3D printed ‘Game of Thrones’ phone dock, another instance of copyright assertion saw a university claiming copyright over a cast of Michelangelo’s Moses on their campus in response to a 3D printable version of the statue made available online.9 As the 3D printing industry gains traction and in light of the possibility of adoption of 3D printers in households in the 8 Ibid.

9 Ariel Bogle, ‘Good News: Replicas of 16th-Century Sculptures Are Not Off-Limits for 3-D Printers’ (Slate, 26 January 2015) <http://www.slate. com/blogs/future_tense/2015/01/26/_3_d_printing_and_copyright_replicas_ of_16th_century_sculptures_are_not.html> accessed 28 March 2015

near future, it is necessary to consider whether the current state of intellectual property law is sufficient to cope with the issues that may arise in the event of widespread digitisation.

Infringement of intellectual property rights in Singapore may fall under one of four types which exist in statute: patents, copyrights, registered designs, and trademarks. Patents apply to new inventions with an inventive step, and require an application to the Registry of Patents. Upon approval by the registry, the inventor is granted a patent, giving exclusive rights over the invention. In contrast, copyright arises as soon as an original work (whether literary, dramatic, musical or artistic) is created and does not require a formal application to be made to ensure its validity. The copyright holder accordingly has control over any copies made of the work. New designs of objects that are manufactured using industrial processes may be protected as registered designs – similar to patents, they require an application made to the Registry of Designs that grants exclusive rights upon approval. Trademarks are a more unique form of intellectual property right in that they deal with signs distinguishing a product or service, rather than the product itself.

They also require registration which grants exclusive rights over their usage. This article will consider each of these in due course to assess whether the current scope of rights can cope with 3D printing, as well as widespread digitisation of the physical world.

On the whole, current legislation will not be able to cope in the event of an explosion in the adoption of 3D printers, primarily in the areas of patents, copyright, and registered designs.

This is mainly due to digitisation, which creates a new set of infringing actions currently unaccommodated for, and also highlights certain ambiguities that pose problems in application.

Trademarks will remain relatively unaffected by digitisation; it is 30

in the former three areas that the law will require some reform.

PATENTS The current patent legislation, as set out in the Patents Act (Cap 221, 2005 Revised Edition), does not accommodate for the digitisation of physical objects that is seen in the CAD files that are essential to 3D printing. This proves to be problematic since the general use of 3D printers in households will not infringe patent rights. Under section 66(2)(a), it is stated that acts done ‘privately and for purposes which are not commercial’ do not constitute infringement of a patent. While the meaning of ‘privately’ is vague, it may be understood as anything done without the purpose of sale. Thus, printing a patented object (for example, a toy such as a Lego brick which was previously protected by a patent10) to use at home would not infringe a patent.

The private use clause has traditionally been limited by the difficulties posed in manufacturing, which requires a large amount of resources or expertise to create a finished product.

3D printers have the potential to subvert this process, making it extremely easy to manufacture a patented object. Thus, there is an encroachment upon the rights of the patent holder in the sense that production of the patented product for private use limits full commercial exploitation of the invention by the patent holder. In order to redress the balance, the private use provision may be repealed in order to prevent this encroachment. However, this does not address the cause of the problem nor is it effective for the patent holder to pursue compensation against individual domestic users – as has been illustrated by the actions taken by the music industry in the rise of file-sharing at the turn of the century. Despite lawsuits pursued against individual file sharers from 2003 onwards,11 as of 2013, music sales amount to half of what they were in 1999 in the US.12 It is therefore best to seek alternative solutions which target the root of the issue.

Ideally, the patent holders should be able to pursue legal claims against the distributors and creators of the CAD files that allow home users to easily manufacture patented products.

Current legislation does not allow for that recourse, as the scope of indirect infringement (where an individual facilitates the act of infringement by another) is severely limited. As set out in section 66(1)(a), infringement is defined as the making, disposing of, keeping for disposal of, and using or importing the patented product. The extent of the actions set out in statute is limited to interaction with the actual product, and does not take into account the role of individuals in the online domain providing access to the CAD files, allowing for infringement to occur. Even on an extremely wide interpretation, it would be improbable to include the distribution and creation of CAD files (the equivalent of blueprints) under the umbrella of actions designated as patent infringement.

Patent legislation will not be able to cope with the widespread adoption of consumer 3D printing, and will have to be revised for his eventuality. Including CAD file sharing and distribution in the definition of acts that constitute infringement will allow patent holders a form of recourse necessary to protecting their 10 Rob Beschizza, ‘Expired patent of the day: Lego’ (Boing Boing, 21 October 2011) <http://boingboing.net/2011/10/21/expired-patent-of-the-daylego.html> accessed 15 April 2015 11 Electronic Frontier Foundation, ‘RIAA v. The People: Five Years Later’ (Electronic Frontier Foundation, 30 September 2008) <https://www.eff. org/en-gb/wp/riaa-v-people-five-years-later> accessed 01 July 2015 12 Recording Industry Association of America, ‘Scope of The Problem’ (RIAA, 2015) <https://www.riaa.com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem> accessed 01 July 2015

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rights. This will re-establish the current balance that has been found between incentivising innovation and the interests of the public. 3D printing has the potential to shift the balance to greatly reduce incentive for innovation, and the patent legislation must adapt in light of this.

COPYRIGHT The prevailing legislation for copyright is capable of encompassing the various processes that arise in the course of 3D printing and much of the framework adopted in light of substantial copyright infringement in the online domain can be applied to issues arising from 3D printing. The main concern in the adoption of 3D printing by home users lies in the ambiguity surrounding the subsistence, or existence, of copyright in artistic works. Three dimensional objects printed by a 3D printer will fall under the general categories of ‘sculpture’ and ‘works of artistic craftsmanship’13, which are vague terms in order to encompass a broad range of works. This however creates misconceptions due to uncertainty, and is undesirable in balancing the interests of rights holders and public access.

The scope of rights as prescribed under the Copyright Act (Cap 63, 2006 Revised Edition) ensures sufficient protection for rights holders as it is broad enough to be applied adequately to protect various rights where they may arise in the process of 3D printing. Infringement of copyright includes a broad spectrum of acts, ranging from the sale, hire, trade and distribution, to simply exhibiting the work to the public.14The copyright legislation has been well adapted to tackle issues that will arise in the event of widespread digitisation. This includes provisions such as section 17 for example, which expands the meaning of ‘reproduction’ as an exclusive right of the holder to include any references to storage or adaption on an electronic medium. Recent developments include an amendment made to the Copyright Act in 2014 implementing section 193 DDA, which allows rights holders to direct internet service providers to disable access to online locations infringing the copyright. As far as copyright holders are concerned, increased digitisation of the physical world will not result in a significant erosion of their rights – many of the issues have already been addressed in light of the earlier conflict between file-sharing technology and the entertainment industry.

The main complication that arises in the digitisation of goods is seen in the uncertainty regarding the subsistence of copyright in various objects. Copyright, as opposed to other forms of intellectual property rights, is unique due to the way it comes into existence: it is a legal right that arises naturally upon the creation of the work, as opposed to one that must be applied for and registered. The majority of copyrighted material in the online domain consists of literary and musical works, where the subsistence of a copyright is comparatively much easier to ascertain. Three-dimensional works are more ambiguous in the sense that they are burdened by the consideration of opposing elements - art and function. An object that is exclusively functional and utilitarian, such as a plain chair or table, is not afforded any copyright. That being said, a majority of the works reproduced using a 3D printer will fall neatly into either category. Examples include figurines and ornaments which are seen as artistic objects, while spanners and various tools which can be printed are solely functional. However, it is not uncommon for objects to have both artistic and functional elements, a common example being pottery and ornamental tableware. When both elements are present, the subsistence 13 14

Copyright Act (Cap 63, 2006 Rev Ed) s 7(1) Copyright Act (Cap 63, 2006 Rev Ed) s 33(1)

of copyright in the object becomes far more uncertain due to the lack of clear guidelines. Statutory authority uses extremely general and circular language – ‘sculpture’ is defined as including ‘a cast or model for the purposes of sculpture’.15 Singaporean courts have not had the opportunity to deal with this issue, nor have other Commonwealth jurisdictions developed a clear test to deal with this issue. As the digitisation of three-dimensional objects becomes more prevalent, this issue of ambiguity will rise in prominence. It is preferable to set out clear guidelines through legislative amendments, since the tendency of parties will be to err on the side of safety in light of the severely punitive lawsuits pursued by the entertainment industry over copyright infringement – neglecting this problem will stifle growth in the industry.

Definitions of the terms ‘sculpture’ and ‘works of artistic craftsmanship’ have been considered by the courts in UK, but have not lead to a clear test on how to assess the subsistence of a copyright in objects which possess both functional and artistic elements. The definition of the word ‘sculpture’ in the Copyright, Designs, and Patents Act 1988 has been considered most recently in Lucasfilm Ltd v. Ainsworth.16 The case featured a dispute over the reproduction of Imperial Stormtrooper helmets from the first Star Wars movie, and one of the key issues was whether the helmets qualified as a sculpture for the purposes of copyright. It was concluded that the helmets were primarily utilitarian and not artistic; the reason being that the helmets were utilitarian in the context of the film with an analogy being drawn to the use of a 20th century military helmet in the production of a film.

The decision seems somewhat arbitrary, since there is significant merit to the opposing view that the helmet had been created with the objective of making a strong impression, given that it had undergone several adaptations before being finalised. Ultimately, consideration of whether the helmet qualified as a ‘sculpture’ for the purposes of copyright was extremely subjective, and up to the personal interpretation of the judge which was not disclosed.

The term ‘works of artistic craftsmanship’, which is broader and includes works with more functional elements, is considered in the leading case of Hensher v. Restawile.17 The case was concerned with whether the prototype design of a furniture set qualified as a work of artistic craftsmanship which would allow copyright protection. While the Lords each attempted to set out a definition, there were multiple different opinions on essential elements for consideration – not only is there a lack of single cohesive test, the case itself illustrates the difficulty in attempting to set out a test where art or artistic elements are concerned. It is thus seen that in objects where both artistic and functional elements reside, there is a large degree of uncertainty as to the value placed on the elements that ultimately determine whether copyright subsists.

Uncertainty in the subsistence of copyright creates a significant bar to the growth of the industry, and also disrupts the delicate balance by empowering rights holders disproportionately.

Where ambiguity arises regarding copyright, individual users (especially those at home) will tend to accept an assertion of rights made by those claiming to be the rights holders online.

This is the result of the entertainment industry having brought lawsuits against end users over the infringement of copyright through file-sharing. Past cases in Singapore include legal action pursued by Odex18 (an anime distributor) and more recently, by 15 Copyright Act (Cap 63, 2006 Rev Ed) s 7(1) 16 Lucasfilm Ltd and others v Ainsworth and another [2011] UKSC 39, [2012] 1 AC 208 17 George Hensher Ltd. v Restawile Upholstery (Lancs.) Ltd [1976] AC 74 (HL) 18 Nate Anderson, ‘RIAA-style lawsuits hit Singapore anime scene’ (ArsTechnica,28 August 2007) <http://arstechnica.com/tech-poli-

the copyright holders of the movie Dallas Buyers Club.19 Similar actions overseas by rights holders in the film and music industry against individual end users for the purposes of deterrence have conditioned users to avoid potential lawsuits, given that the amount pursued in relief is often a heavy penalty the individual user cannot afford. Home users are thus especially quick to assume the subsistence of a copyright in the face of another party asserting such rights – one such case has already occurred in the 3D printing hobbyist community. A user uploaded a 3D model of an optical illusion on Shapeways, a website which acts as a marketplace for designers of 3D printed objects. A similar model was later uploaded by another user on a different site, leading the original user to send a takedown request to the website administration, which duly complied.20 The issue overlooked by those involved was that the subsistence of the copyright in the 3D model was tenuous – the optical illusion was merely a three-dimensional interpretation of one that had been around for decades, and even so, optical illusions themselves are potentially beyond the scope of copyright.21 This sort of conditioned acceptance of copyright subsistence is detrimental for public interest, preventing potentially lawful consumption of content. In this way, the ambiguity of copyright subsistence in three-dimensional works eventually poses a barrier to future growth of the industry. It is therefore desirable to provide clear guidelines for determining copyright subsistence in such works, which will in turn incentivise further innovation through greater adoption and usage.

INDUSTRIAL DESIGNS The Registered Designs Act (Cap 266, 2005 Revised Edition) fills the gap left by copyright in relation to artistic works, protecting any ‘shape, configuration, pattern or ornament applied to an article by any industrial process’.22 Examples of registered designs include the shape of a chair23 and the shape of an orchid as applied to jewellery.24 The issues faced here are similar to those in patent legislation, since the act does accommodate for digitisation. Potential home usage of 3D printing that falls under the domain of industrial designs is seen in the printing of replacement parts and jewellery. The individual user at home is exempted from the scope of design rights conferred by the Registered Designs Act. This is due to effect of section 30(5)(a), which states that there is no infringement so long as the making of the object is for a ‘private non-commercial purpose’. This can be interpreted to the effect that home users will not be liable for any infringement as long as the making of an object where there is a registered design is solely for private consumption.

The act is geared towards protecting the commercial interests of the owner of the registered design, as seen in the exclusive rights granted to the owner by section 30(1) which have regard to the various commercial activities of sale, hire, trade and business. Similarly, the use of both terms, ‘private’ and ‘noncy/2007/08/27/riaa-style-lawsuits-hit-singapore-anime-scene/> accessed 20 April 2015 19 Irene Tham, ‘Dallas Buyers Club case: US studio says blocking piracy sites not an effective method to protect copyright’ (The Straits Times, 14 April 2015) <http://www.straitstimes.com/news/singapore/more-singapore-stories/story/dallas-buyers-club-case-us-studio-calls-anti-piracy-laws> accessed 20 April 2015 20 Michael Weinberg, ‘What’s the Deal with Copyright and 3D Printing?’ (Public Knowledge, 29 January 2013) <https://www.publicknowledge.org/ files/What%27s%20the%20Deal%20with%20Copyright_%20Final%20version2. pdf> accessed 30 March 2015 21 Ibid.

22 Registered Designs Act (Cap 266, 2005 Rev Ed) s 2(1) 23 Sebel Furniture Ltd v TiongHin Engineering Pte Ltd [1999] 2 SLR 662 24 Risis Pte Ltd v Polar Gems Pte Ltd and Others [1995] 1 SLR 88

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commercial’ in section 30(5)(a) suggests that the exempted acts occur on a very limited scale and do not prejudice commercial exploitation of the registered design by the owner. However, possible widespread adoption of 3D printing at home allows these individual users as a demographic to have the potential to affect the commercial value of the design right, even though each user consumes the content privately. It would not however, be feasible to remove the private purpose exemption since this would affect the delicate balance by giving the owners of design rights too much power, not to mention that pursuing individual users for infringement is not economically feasible.

Ideally, the owners of the design right should be able to enforce their rights against the distributors of the CAD files that enable the individual users at home to produce the infringing article.

However, statutory authority is lacking in this regard. The owner of a registered design may be able to enforce his exclusive right against the creator of a CAD file which models a registered design through section 30(2)(b) in the Registered Designs Act which states that ‘[making] anything for enabling any article’ in which there is a registered design constitutes infringement. The act of distributing a CAD file that contains a registered design through file-sharing methods however, based on an ordinary interpretation of the statute, does not fall under the exclusive right of the owner or any of the defined infringing acts. On an ordinary reading of the statute, the owner of the registered design is given exclusive rights to commercial activities involving articles with the design. The purpose of distribution through filesharing is not commercial, and cannot be construed as selling or intended for trade. Similarly, an ordinary interpretation of the phrase ‘makes anything’ in section 30(2)(b) would not include the distribution of digital files. In light of this, the courts might choose to stretch its meaning to include such an act based on what appears to be the general intention of the statute to protect commercial interests. However, such an interpretation would be more of a piecemeal solution – it would be better to amend the statute to include a provision similar to that in the Copyright Act, where the communication of works to the public would be an exclusive right. Thus, we see that the current legislation may be applied to the processes of 3D printing, but digitisation creates an issue which needs to be addressed in order to reestablish the balance of rights.

TRADEMARKS Trademarks will remain relatively unaffected by widespread adoption of 3D printing, since the rights granted specifically involve actions taken in the course of trade. The Trademarks Act (Cap 332, 2005 Revised Edition) protects ‘any sign capable of being represented graphically and which is capable of distinguishing goods and services dealt with in the course of trade’.25 These typically involve the brands and logos of companies, one example being the ‘SUBWAY’ logo.26 Infringement is defined as when a person ‘uses in the course of trade a sign identical with the trademark’27 – there is no infringement in the event that a home user chooses to apply a famous logo to a printed product.

In any case, trademarks involve the graphical representation of a sign, and are thus not affected by the medium upon which it is represented, whether physically or digitally. As far as trademarks are concerned, 3D printing will have little impact on this area of intellectual property.

25 Trade Marks Act (Cap 332, 2005 Rev Ed) s 2(1) 26 Doctor’s Associates Inc v Lim Eng Wah (Trading as SUBWAY NICHE) [2012] SGHC 84 27 Trade Marks Act (Cap 332, 2005 Rev Ed) s 27(1)

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CONCLUSION 3D printing is likely to change the way we procure and consume goods. Its potential lies in being able to manufacture highly customisable objects on demand, and also bring the entire manufacturing process into households. A toy model could easily be found online, altered to fit the needs of the user and subsequently printed in a variety of materials and colours. As 3D printing continues to grow in adoption, an inadvertent effect will be a drastic increase in digitisation of the physical world.

This has already begun to happen, with the production of 3D scanners – the Smithsonian Institution making 3D models of its vast collection available online.28 With such an unprecedented level of digitisation, intellectual property legislation will inevitably have to adapt, as it did earlier with the impact of filesharing on copyright in the film and music industries. With patents and registered designs, the manufacturers of goods have traditionally been protected by the difficulty and skill needed for the average person at home to create similar products. 3D printing subverts this, and also brings it to the online domain.

As a result, the law must adapt to this era of digitisation and expand the scope of rights into online territory. While copyright legislation has largely adapted to the impact of digitisation, uncertainty in its subsistence in three-dimensional works remains an issue to be resolved in order to refine the balance between incentivization and public interest. It is worth noting though, that 3D printing currently stands as a niche industry and there is much room for growth in its adoption before these issues are to come into play. In a recent study commissioned by the UK Intellectual Property Office, the possible impact of the industry on intellectual property was noted. It concluded though, that it would too early to legislate on the issue since the industry is still relatively small.29 It may therefore be argued that the issues arising from the interaction of 3D printing, digitisation, and intellectual property are not significant enough to warrant legislation in the short-term due to the current niche nature of the industry. However, it is worth considering these issues sooner rather than later, since legal certainty will also aid the growth of the industry. The technology contains enormous potential for growth – recent developments include a new method of 3D printing which revolutionizes the speed and finish of the printed object, two issues that have plagued the more common methods of 3D printing for some time.30 With increasing levels of interest in the technology, we may very well be one revolutionary step away from widespread adoption and it would do well to be ready to deal with issues in the new era of digitisation.

28 Joseph Stromberg, ‘These New 3D Models Put the Smithsonian’s Most Renowned Items in Your Hands’ (Smithsonian.com, 13 November 2013) <http://www.smithsonianmag.com/smithsonian-institution/thesenew-3d-models-put-the-smithsonians-most-renowned-items-in-your-hands180947679/?no-ist> accessed 30 March 2015 29 Dinusha Mendis and Davide Secchi, A Legal and Empirical Study of 3D Printing Online Platforms and an Analysis of User Behaviour: Study1 (Intellectual Property Office, 19 March 2015) https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/421221/A_Legal_and_Empirical_Study_of_3D_Printing_Online_Platforms_and_an_Analysis_of_User_Behaviour_-_Study_I.pdf accessed 30 March 2015 30 Shalini Saxena, ‘New nonstop 3D printing process takes only minutes instead of hours’ (Ars Technica, 19 March 2015) <http://arstechnica. com/science/2015/03/new-nonstop-3d-printing-process-takes-only-minutesinstead-of-hours/> accessed 25 March 2015

By Quek Zhao Feng

Defamation Act: http://statutes.agc.gov.sg/

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INTRODUCTION The new UK Defamation Act 2013 (the “Act”), retains the basic structure of existing law with the addition of several important amendments. Among these include a new substantial harm requirement, major changes to existing defences, and the addition of some new ones. Major changes however, may not always indicate major deviation: many amendments are merely formative tweaks to substantively constant approaches and recognized principles. The commonalities between both jurisdictions creates potential learning points for application of more salient features of the 2013 Act in advancement of Singapore defamation law.

Ultimately the objective of the article is an evaluative, not a suggestive one. Evaluations of new legislation on the basis of their merits will however, almost certainly result in a convergence of these in consequence. It is therefore urged that however compelling or persuasive the arguments for or against application are, the ability to retain existing legislation or to initiate reform still resides with Parliament.1 Though the article discourages complete overlay of English over local civil defamation law,2 the continuing importance of adaptation in advancing common legal frontiers cannot be discounted, and one must consider where to toe the line between retaining substantive autonomy and adaptation for practical improvement.

UK AND SINGAPORE DEFAMATION LAW TODAY Without a codified constitution,3 the development of Defamation Law in the UK parallels development in most other areas of common law: through various Acts of Parliament and the concurrent expansion of case law providing mounting precedent. The latest contributing legislation, the Defamation Act 2013, came into force on 26th April 2013, amidst an increasing call to impose greater restrictions on claimants to prevent libel tourism and abuse of the litigation process,4 as well as counteract the chilling effect that potential liabilities in defamation may have on freedom of expression.5 Additionally, the Act served to consolidate and refine existing defences to flow in tandem with modern developments.

Singapore libel law on the other hand, largely retains all principles of English libel law up to 1997, with additional restrictions imposed by a codified constitution. Though Article 14(1) of the Constitution of Singapore provides for the freedom of speech, these rights are subject to the restriction of Parliament 1 Application of English law Act Chapter 7A, Act 35 of 1993.

2 Gary Chan: The Law Of Torts In Singapore [2011] - The analysis here shall be restricted to civil defamation laws, (English law has no action for criminal defamation) 3 Thoburn v. Sunderland City Council [2002] EWHC 195 (designation of ‘constitutional statutes’) 4 Jameel v. Dow Jones [2005] EWCA Civ 75 5 Lunney & Oliphaunt, Tort Law, Texts and Materials [2013] 5th ed, p.686

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in defence of several key tenets of society, such as public morality, international relations and others.6 Recent case law has held defamation law to be entirely harmonious with Article 14(1).

The right to freedom of speech is therefore subject to restriction by the law of defamation in Singapore.7 As the article aims to evaluate the general impact of these amendments and general legal consequences, its wider political, and economic implications are not discussed in great detail.

Furthermore, the recentness of the Act’s assent means case law has not manifested to a great degree, and projected implications will largely be theoretical, rather than affirmatory.

SUBSTANTIAL HARM REQUIREMENT (S1 DFA 2013) Following a previous recommendation by the Ministry of Justice for a ‘threshold of seriousness’ for all future actions of defamation, s1 of the 2013 act requires claims to pass an additional ‘substantial harm’ requirement beyond mere harm to one’s reputation. Instituted with aims to curb libel tourism, the added restriction allows ‘trivial’ cases that do not meet the requisite requirement to be halted at earlier courts, streamlining the judicial process.8 This is evident in the landmark case of Cooke,9 where the high court noted that though the natural and ordinary meaning of the words were prima facie capable of bearing a defamatory meaning, it did not cross the serious harm threshold, granting lower courts effective stopping power.

Curtailing such cases could lead to cost reductions in the long run, as well as consolidation and distillation of the current law.

Also, it seeks to reverse the chilling effect on journalism and freedom of expression10 that the allowance of easier defamatory claims would serve to promulgate.

Several issues present themselves immediately. Though fewer cases reaching higher appeal courts means lower costs in those courts, the move potentially frontloads these costs to lower courts in the process of identifying the ‘trivial cases’: a downward diffusion of responsibility.11 Without the backing of binding judicial precedence as guidelines from higher courts, lower courts would be hard-pressed to make initially conclusive judgments on whether an imputation is ‘substantially damaging’ or not. This disorganized treatment of new cases may impact the initial coherence of defamation law, where odd or contentious cases would proceed to higher courts on appeal anyway, defeating its initial purpose of introduction.

Also, the new restriction seems to mix-up the strict definition 6 Art.14 s2(a)-(c) Constitution of Singapore 7 Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230; [24][25] 8 Ministry of Justice, Draft Defamation Bill Consultation CP 3/11, Cm.8020 (March 2011) 9 Cooke v MGN [2014] EWHC 2831 10 Art. 10. ECHR 11 Mills & Reeve: The Defamation Act 2013 and its application to the internet- A missed opportunity? (April 2011)

of a ‘defamatory imputation’, where the question of whether a statement is defamatory is bound up with a judgment call on extent of damage it is likely to cause. The distinction between libel and slander will probably be unaffected, where both libel and slander cases could fall foul of s.1 if the actual damage proven is insufficient. It is arguable that there might be cases where actions of libel may fail for not causing enough damage, where actions of slander may succeed if they do, especially as proof of special damage is a prerequisite for slander and is therefore more likely to satisfy the substantial harm requirement. Alternatively, the threshold can be viewed as setting an additional requirement for a claimant to prove on top of the existing examples of defamatory meaning, which is probably the more practically relevant interpretation.

If so, a claimant will therefore need to show that the words complained of, for example: (a) caused, or are likely to cause serious harm to the claimant’s reputation: and (b) tend to i)

lower the claimant in the estimation of right-thinking or reasonable members of society: or

ii)

substantially affect in an adverse manner the attitude of others towards the claimant, etc.

Most claims brought by individuals would be unlikely to be affected by the substantial harm requirement, as most defamatory statements which are disputed or litigated are clearly likely to cause serious damage to a person’s reputation. The threshold however, will likely increase the number of cases where (1) the claimant does not take action (as he is unsure whether the damage suffered amounts to objectively substantial harm), or (2) where the defendant resists offering any remedy, expecting the greater likelihood of a Cooke-type verdict to succeed and more strike out applications to follow.

Also, it seems to follow that when applying the test, lower courts have to consider the extent of publication, the claimant’s preexisting reputation, and the effect on his/her reputation of other allegations in the same publication shown to be true, among others. These considerations are taxing and possibly arbitrary, and would likely result in the same costly, evaluative problems on lower courts as above unless a clear template of necessary considerations is created and adopted to ease their burden.

It would follow that Singapore should only adopt the serious harm threshold if (1) It is evident that there is an blatant abuse of the legal process by foreign parties taking advantage of more relaxed defamation laws, (2) There is a overwhelming number of defamatory cases in the courts of final appeal that could be served by relegating these cases to the lower courts, (3) There are no concerns with possible fundamental change of the definitional requirements and considerations of a ‘defamatory imputation’ (4) There is no need to counter any perceived chilling

effect on freedom of expression.

It has been noted that the present segmented approach that underlines the possibility of appeals at each stage could lead to costs and time inefficiency12 which could perhaps be remedied by local imposition of the substantial harm threshold. If defamation cases do not frequently reach higher courts ,Singapore may consider implementing the threshold to take advantage of the cost reductions in courts of higher appeal. Notably, Singapore’s judicial approach to evaluation of the elements of the initial cause of action for defamation differ slightly from England.

Verdict on a defamatory statement is made by a judge,13 not by the presumption of the jury (as in England before the DFA 2013), offering less swayable opinion for the claimant to capitalize on.

With the imposition of the s.1 requirement, Singapore’s libel law may be perceived to be claimant friendlier now vis-a-vis the UK and the US. Singapore law does not protect defendants who engage in ‘responsible journalism’. Neither is there a burden on the claimant to prove ‘actual malice’ in Singapore before the defendant can be rendered liable, adopted in the US. Additionally, the Act’s curtailing policies may have introduced an unforeseen side-effect in redistributing libel tourism from the UK to other jurisdictions. Singapore would thus benefit from a tightened approach against a possible influx of libel tourists looking to capitalize on less-stringent jurisdictions. Though adopting the substantial harm approach could be one possible recourse, perhaps the local law could instead be evaluated more generally, as the adoption of a blanket requirement could lead to unforeseen consequences, especially considering the nascence of the Act. DEFENCES The Act has also amended existing common law defences to varying degrees. Some defences such as justification and fair comment, have been abolished entirely and replaced by new ones, while others have merely been qualified. New defences have been introduced to keep up with the modern times. Some defences have merely changed in form, while retaining their substantive spirit. This section examines the rationales behind these amendments, and considers its merits and applicability to Singapore law. The Reynolds Privilege for responsible reportage is not considered part of Singapore law, therefore, its abolition in the 2013 Act and the new s4 Public Interest defence will not be discussed in this article.14 The 2013 Act’s s11 removal of the presumption by jury is too, exempted from discussion, as local defamation law involves a strictly judicial evaluation of a defamatory imputation and appropriate remedies.

TRUTH (JUSTIFICATION) (S2 DFA 2013) The defence of justification, a complete defence to libel or slander based on the truth of the defamatory statement, has been abolished in favour of a statutory truth defence. The defendant therefore has to prove the imputation conveyed by the statement complained of is substantially true, where minor inaccuracies will not preclude the defence. Section 5 of the 1952 Act has been transposed into section 2(2) of the 2013 Act with more modern language, with a reference to “seriously harm” rather than “materially injure” the claimants reputation, but effects no foreseeable substantive change from the previous defence of justification, that Singapore employs. Though s2(2)-2(3) 12 Basil Anthony Herman v. Premier Security Cooperative Ltd [2010] 3 SLR 110 13 Gary Chan: The Law Of Torts In Singapore [2011] p.452-453 14 Review Publishing Co & Another v. Lee Hsien Loong [2009] SGCA 46

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of the Act addresses the situation where the defendant makes two or more distinct imputations against the claimant, it does not account for the prevalence of different shades of meaning of the same imputation, namely if one of which can be proved true by the defendant while the other, perhaps the one which the judge or jury decides consists of ‘the sting’ of the defamatory imputation, cannot. It is recommended that Singapore, if considering amending its defence of justification, account for possible divergence in meanings by specifying that only what the judge regards as the natural and ordinary meaning can form ‘the sting’ of the imputation. The fact that defence is able to prove the truthfulness of his own interpretation of the meaning would avail him nothing if it deviates from the judiciary’s interpretation.

Other than small terminological changes to pre-1993 defamation law, it would seem that there is little difference between the statutory defence of truth and the preceding defence of justification, which makes application of the new defence rather straightforward. There is overall no major substantive change, nor advantage, in the treatment of the defence of justification that Singapore uses. It is likely that Singapore need not adapt its existing usage of the defence15 to its UK counterpart to achieve the same substantive effect.

HONEST OPINION (FAIR COMMENT) (S3 DFA 2013) The defence of honest opinion, previously known as fair comment, is another complete defence to an action for defamation. Several substantive changes have been reflected however, where the defendant may rely on the defence if (1) the statement complained of was a statement of opinion, which (2) indicated in general specific terms the basis of that opinion, and (3) where any honest person could have held the basis of any fact which existed at the time the statement was published, or a privileged statement published before the statement complained of.

Most notable is the removal of the common law requirement that the opinion or comment be on a matter of public interest, where condition (2) requiring the expression of the opinion’s basis, could possibly be seen as the trade-off. This has allowed the defence to be widened in scope to protect expressions of opinion more private in nature and rectify these injustices. In addition, where the fair comment defence was defeated by malice (notably narrower in the fair comment defence as opposed to qualified privilege),16 s3(5) qualifies the principle that this defence is defeated if the opinion is not actually held, avoiding confusion with the usage of malice in the defence of qualified privilege.17 Though the defence has not completely dispensed with its predecessor’s technicalities, it should protect honest opinions more readily than the fair comment defence. One might say the defence provides more outs for defendants, as one not only is absolved of the need to show public interest, but too may rely on any fact or privileged statement as a basis that an honest person could have used to form the defamatory opinion about them.

15 Singapore Defamation Act, S8 (Cap 75, 1985, Rev Ed) 16 Gary Chan: The Law Of Torts In Singapore [2011] p.488 17 Horrocks v. Lowe [1975] AC 135, Definition of malice is satisfied on two accounts: (1) where one had a lack of honest belief in the statement’s truth, (2) or the presence of a dominant improper motive on the defendant’s part.

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Application to considerations:

Singapore

law

involves

the

following

(1) The new defence is an more expansive one, and removing the public interest requirement in favour of a establishment of the basis of opinion could possibly be more damaging than clarifying.

(2) Whether the term malice should be discarded in favour of the more specific notion that the defence is disapplied if the opinion is not actually held.

For the second consideration, Singapore law already recognizes a substantive difference between the terminology of malice between the defence of fair comment, and qualified privilege,18 leading this author to believe that application is not particularly urgent or fruitful, though arguably any adaptation of the law by Parliament in this manner would be uncontroversial.

The main concern is (1). As the Defamation Act 2013 amends English Defamation law as blanket legislation, public interest requirements and defences, though removed from fair comment, are consolidated elsewhere readily.19 If Parliament is similarly prepared to remove the public interest requirement from defence of fair comment, it must be prepared to reinstate the defence elsewhere. A broader and more problematic restructuring of defamation law could thus ensue, with largely uncertain implications. This is not to say the option is a fruitless one, as substantively the heart of a public interest requirement is to ground the statement in a basis of public relevance, which may be unreasonably high for the private individual with an honest opinion. A fact may indisputably ground an honest opinion, but not every fact may reflect a public interest. This could be a useful step towards clarifying the law that respects the individual’s right to life and personal liberty.20 STATUTORY QUALIFIED PRIVILEGE (S7 DFA 2013) Though the Act has expanded the areas of absolute privilege in common law, most relevant changes for this article are reflected in the expansion of areas of statutory qualified privilege (privilege that is only ‘qualified’ in the absence of malice).21 The removal of ‘malice’s application as a definitional qualification to the defence of honest opinion s3(5) removes further confusion over the term’s substantive meaning for the purposes here.

The Act extends the qualified privilege of the 1996 Act22 for accurate reports of proceedings from public notices to extracts to cover anywhere in the world (s7). The approach eases the defendant’s burden, allowing him to exonerate himself if proof can be submitted for ‘fair and accurate’ coverage. The same extension has been issued to fair and accurate reports of any documents circulated within listed companies relating to auditors and their directors, as well as reports of press conferences discussing matters of public interest or the proceedings of scientific or academic conferences. Additionally, s6 of the 2013 Act establishes a distinct new category of privilege applying to ‘peer reviewed publications in scientific or academic journals.’

The law with regard to statutory qualified privilege has been modernized and clarified in several important aspects, though its relevance may not extend completely to local law. The necessity of extension of the privilege to anywhere in the world appears to correlate with the range and rich variety of press pclearly 18 19 20 21 22

Gary Chan: The Law Of Torts In Singapore [2011] p.509 s4 Defamation Act 2013 Art. 9. Constitution of Singapore Singapore Defamation Act, s12. Cap 75 1985 Rev Ed Defamation Act 1996, Pt II Schedule 1

policed if the defence needs to be implemented. Boundaries on the definition of ‘academic’ needs clear policing as wellmany potentially defamatory comments could be pleaded on ‘academic grounds.’ These are key considerations to note should reform proceed along these lines.

INNOCENT DISSEMINATION (S5, S10) The updated defence reflects the grey area that operators of websites sometimes straddle, where their status as mere administrators do not carry the requisite intention to hold one accountable for publication of the statement as facilitators. It is often difficult or unfair to designate the facilitator of the website having enough control over every single submission of usergenerated content that could bear a defamatory meaning, with operators having finite moderating powers. It appears unfair to establish liability for facilitators of liberal social media sites such as Twitter and Facebook, who are largely detached from its usergenerated content, and have no editorial obligations over any statements posted through their servers. s5 of the Act recognizes this small injustice and provides recourse for non-posters of the offending statement. The defence is somewhat easily defeated though, as it is not routinely possible for claimants to identify the perpetrators of seditious comments on cyberspace, much less satisfy the standard of ‘sufficient information’ for the bringing of proceedings against them.

local law seek to apply the substantial harm requirement in its methodology, this is another area of law(extra publications with insubstantial impact) that s1 could catch. Considering the essence of s8 in isolation, it would be a useful position that could reduce costs and burden of the courts in dealing with multiple publications, and could be adapted for use.

CONCLUSION The assessment of the Act is far from conclusive, as theoretical speculation will cease to remain grounded with each application of the Act to new cases. It is recommended that local law observe the development of English defamation law dynamically, gleaning insight from its application in common law in a retrospective fashion. Historically common legal frameworks guarantee that substantively useful amendments to common law can be readily applied in local statutes, and we should observe developments in UK defamation law with renewed interest.

Furthermore, the terminology used in the statute retains its colloquial and somewhat nebulous grounding where ‘operators’, ‘posts’ and ‘moderators’ are all left to the court’s interpretation, pointing to the defence as somewhat reactionary and unrefined, and borne out of an urgent need to fill in the gaps of the law. s10 of the Act somewhat reflects this haphazard consolidation, threatening to render s5 irrelevant for non-editors of content, serving as an partial defence which only allows pursuance of the defendants if the author, editor, or publisher cannot be found with reasonably practical means. Not only is this defence constrained by the arbitrary status of the true perpetrator, but it fails to substantively absolve the innocent operator, legitimizing a somewhat punitive charge to a non-transgression.

In Singapore law the defence of innocent dissemination is generally available to intermediaries. However, because the 2013 Act as it stands is extremely complicated due to usage of unelaborated, colloquial terminology,23 there is a risk of potential injustice. Thus, the author submits that English legislators, though ambitiously expanding the statute, has yet to present a coherent and structured legal framework required for cross application. Local law should refrain from adaptation until a more conclusive protection is offered.

SINGAPORE PUBLICATION RULE (S8) The s8 clause arose out of the endeavour to curb each republication of a defamatory imputation leading to a new cause of action. Where a publication is substantially similar to the original imputation with regard to the level of prominence and extent, within the limitation period of one year,24 it would not give rise to a separate cause of action.

Though the section serves to limit the burden of the courts, it raises issues of terminology pertaining to identifying ‘substantially similar’ publications. This should not be a huge problem and is relatively uncontroversial to resolve. Should 23 Timothy Pinto ‘Defamation Act 2013 Taylor Wessing Analysis’ (http://www.taylorwessing.com/fileadmin/files/docs/The-Defamation-Act-2013.pdf) accessed 22/1/2015 24 s4A Limitation Act 1980

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THE ROLE OF CORPORATE DIRECTORSHIPS

image: http://www.valueadd.sg/

By Eva Teh Jing Hui This essay will consider the advantages and disadvantages of allowing corporate directorships in Singapore with reference to recent reforms in other common law jurisdictions.

EVOLUTION OF THE CORPORATE DIRECTORSHIP IN THE UNITED KINGDOM Two fundamental concepts in United Kingdom Company Law are that of the de facto directorship and the principle of the company as a separate legal entity.1 De facto directors can be distinguished from de jure directors: a de jure director has been formally appointed as a director, while a de facto director has not had any formal appointment but nonetheless performs tasks attributed to the role of a director and is held out by the company as being a director. The concept of the de facto directorship hence allows the court to hold individuals who have not been formally appointed as directors to be held liable for the company where they have been shown to exercise control over the company.

On the other hand, the principle of the company as a separate legal entity is important in allowing individuals to manage and limit their personal liability. This principle was established in the case of Salomon v Salomon & Co Ltd,2 where the court held that even if there is only one shareholder in a company, the company remains a legal entity separate and distinct from its shareholders and is not the agent of those shareholders. Lord Macnaghten3 elucidated the concept as such: “The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them.”

Hence, even where a company is controlled entirely by a single 1 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 579 2 [1897] AC 22, HL 3 Salomon v. Salomon & Co Ltd [1897] AC 22, HL [51] (Lord Macnaghten)

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individual who is both its shareholder and director, the court recognises the company as an independent entity with rights and liabilities of its own. All actions of the company will therefore be attributed to the company and not to its shareholders.

Corporate directorships, simply put, are a relatively modern invention that allows a corporate entity to be the director of another company instead of a natural person. Applying the principle of the company as a separate legal entity, the actions of the corporate entity controlling a company is separate and distinct from that of the directors of the corporate entity. As such, where there is alleged wrongdoing with regards to the company the corporate entity is director of, the directors of the corporate entity cannot be held responsible, since any actions taken by the corporate entity must be attributed to the corporate entity itself and not its directors or shareholders. The only way in which the directors of the corporate entity can be held liable is if they are found to be de facto directors of the company the corporate entity is director of. However, it is not always clear if an individual will be held to be a de facto director due to the dearth of authoritative guidance, since there is no “distinct and uniform formal test”4 and only two cases5 that were directly relevant as to the question but are limited nevertheless by the fact that they were decided when corporate directorships did not even exist.

This was the issue in the landmark case of The Commissioners for HM Revenue and Customs v. Holland,6 also known as Re Paycheck Services 3 Ltd. The central question was whether Mr. and Mrs. Holland, who were the directors of a corporate entity that was the only director of 42 insolvent companies, were also de facto directors of these 42 insolvent companies. If they were, the question would be if they were hence guilty of misfeasance 4 Stephen Griffin, ‘Establishing the liability of a director of a corporate director: issues relevant to disturbing corporate personality’ (2013) 34(5) Comp. Law 135, 136 5 Re Hydrodam (Corby) Ltd [1994] 2 BCLC 180; Secretary of State for Trade and Industry v. Hall [2006] EWHC 1995 (Ch) 6 [2010] UKSC 51

and breach of duty in paying out dividends to shareholders when the companies had insufficient distributable reserves to pay their creditors. At the heart of the case was hence the conflict between the separate entity principle and the ‘goal of holding accountable those who in fact control the affairs of the subject companies’.7 Although it was found that Mr. Holland was the “guiding mind”8 of the corporate director, his actions were attributable to corporate director and he therefore could not be held to be the de facto director of the 42 subject companies. By holding that Mr. and Mrs. Holland were not de facto directors, the decision in Paycheck may thus be said to be an example of the separate entity principle prevailing over the “goal of holding accountable those who in fact control the affairs of the subject companies”9.

This decision demonstrated the enduring importance of the concept of the separate legal entity in the UK, as the Supreme Court upheld the principle even where it necessarily prevented the court from apportioning liability on the directors of the corporate director. This was despite the fact that the directors of the corporate director controlled the affairs of the corporate director in relation to the 42 subject companies for all intents and purposes. In this way, the operation of the principle of the separate legal entity may result in tensions with the concept of de facto directorships, as it necessarily limits the instances in which a de facto director may be identified. This was one of the main criticisms of the decision in Paycheck, as it further limited the situations in which a natural person who is a director of the corporate entity that is the only director of a company can be held liable as de facto director of the company that the corporate entity is director of.10 Lord Walker, in his dissenting judgment, warned that the decision would make it easier for individuals to take advantage of “artificial corporate structures” to protect themselves from claims by an insolvent company’s unsecured creditors.11 By setting up another company as the corporate director while acting as the director of that corporate director, an individual can utilise this “simple technical expedient” to minimise personal liability as the director of the company.12 Corporate directorships may therefore be used to circumvent existing regulations put in place to protect the interests of creditors and shareholders. Directors of a company hold almost complete control of the day-to-day affairs of the company; even where a decision requires a shareholders’ meeting, shareholders do not usually possess an intimate knowledge of the goings-on of the business or the sophistication necessary to influence other shareholders to vote against a proposal raised by the directors appointed by the company. As such, the powers vested in the directors are subject to a number of checks written into law, one of which is the concept of directors’ duties. In the UK, the directors’ duties encompass that of the duty to act within powers13 and the duty to promote the success of the company.14 These ensure that directors do not act only in self-interest but make decisions with the creditors and shareholders in mind.

However, if a director can simply incorporate another company to act as director while still controlling the company through this corporate director without being held liable as a de facto director, he can therefore also avoid being governed by the check of directors’ duties.15 This is potentially problematic, as creditors and shareholders will be unable to hold the director

7 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 580 8 Id. 9 Id. 10 Id. 11 Revenue and Customs Commissioners v. Holland [2010] UKSC 51, [101] (Lord Walker) 12 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 580 13 Companies Act 2006, Section 171 14 Id., Section 172 15 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 580

accountable for any wrongdoing. Even though it is now required by the UK Companies Act 2006 to have at least one natural person as director,16 which was not the case in Paycheck, this person may not be the controlling mind of the company but only the sacrificial lamb, allowing the actual person responsible for wrongdoing to nevertheless avoid being held accountable. With the resulting lack of financial transparency and accountability, it is no wonder that corporate directorships have been abolished in several jurisdictions including Singapore.

However, it has been argued that abolishing corporate directorships is not justified despite the possibility of it being used to avoid personal directorial liability.17 As Paycheck demonstrated, the corporate directorship is merely a manifestation of the separate legal entity principle and a way for individuals to manage their exposure to liability.18 That the separate legal entity principle allows for individuals to limit their liability is itself well established in case law.19 In the seminal case of Salomon,20 the House of Lords affirmed that a legally incorporated company must be treated as an entity with rights and liabilities of its own even though Mr. Salomon had set up a company specifically to manage his shoe business, the effect of which was to limit his liability. This decision has been followed in subsequent cases21 and remains relevant in UK company law.

The corporate directorship is therefore recognised in the UK as a legitimate means for individuals to manage their risk.

Nevertheless, a Bill22 that would effectively prohibit the appointment of corporate directors has recently been given the Royal Assent, though it also encapsulates a number of exceptions to the general ban on corporate directorships. Although it remains to be seen what effect this new restriction will have on the use of corporate directorships in the UK, the move to limit the use of corporate directorships is a clear response to the growing demand for greater accountability and financial transparency.

This is apparent from the proposal that small and medium-sized private companies, particularly shell companies, should not be given an exception from the ban on corporate directorships due to the chance that it would “jeopardise policy objectives targeting money laundering and similar crime”.23 Nevertheless, it was recognised in the consultation paper published by the Department for Business, Innovation and Skills (BIS) in November 2014 that there is a “strong case” to be made in favour of allowing certain types of companies to appoint corporate directors, specifically companies with shares admitted to trading on a regulated market.24 The consultation paper noted that a majority of such companies have a group structure and being on a regulated market, are additionally subject to regulations such as the UK Corporate Governance Code and the Disclosure and Transparency Rules. Due to the high level of regulation and resulting transparency, the BIS proposed for companies with shares admitted to trading on a regulated market to be given an exception regardless of size. Public companies without shares admitted to trading may also be given an exception despite not being subject to the same regulations, as their scale possibly “renders them similar to listed companies”.25 The consultation also differentiates large private companies from smaller private 16 Companies Act 2006, Section 155(1) 17 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 581 18 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 581 19 Id. 20 Salomon v Salomon & Co Ltd [1897] AC 22, HL 21 Gramophone & Typewriter Co Ltd v. Stanley [1906] 2 KB 856; Adams v. Cape Industries plc [1990] Ch 433 22 Small Business, Enterprise and Employment Bill 2014, Clause 76 23 Practice Law, ‘Small Business, Enterprise and Employment Bill: BIS consultation on exceptions to ban on corporate directors’ (2014) <http:// uk.practicallaw.com/5-590-1629> accessed 15 July 2015 24 Id. 25 Id.

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entities, making the observation that large private companies “could be disadvantaged by a blanket prohibition”,26 while small and medium private companies are unlikely to be similarly disadvantaged, since there is a low chance that they would appoint corporate directors in any case.27 The BIS also makes it clear that it does not advocate for any change to be made to the regime for LLPs as it currently allows corporate directorships, noting that a ban may “restrict further investment in LLPs”.28 This move towards greater accountability and financial transparency can be seen as part of a larger, global movement following the economic fallout from the global financial crisis of 2008 and will likely be welcomed by stakeholders such as creditors and shareholders. Yet, as the BIS recognised, a blanket ban of corporate directorships may have negative effects on the economy, possibly dampening investments. As such, its proposals took into account these risks while weighing it against policy objectives. In doing so, the conclusion it reached was that it was important to lay down exceptions to a general ban that differentiated between the different types of companies. Some of the relevant factors to determine if an exception should apply to companies to allow the appointment of a corporate director were “the nature of the subsidiary, the nature of the relationship between parent and subsidiary and the nature of the corporate director company”.29 There are hence legitimate reasons for allowing the appointment of corporate directors and although the use of such a corporate structure has been curtailed in recent years, they remain relevant and useful for certain types of companies. As the UK has shown, it is possible to work towards the policy objectives of accountability and financial transparency to prevent money laundering and similar white-collar crimes while still maintaining commercial competitiveness. We will now consider the recent reforms in Hong Kong.

REFORMING THE CORPORATE DIRECTORSHIP IN HONG KONG The Financial Services and the Treasury Bureau (FSTB) held a consultation on the rewrite of the Companies Ordinance in April 2008,30 considering the question of whether corporate directorship should be “abolished altogether in Hong Kong” or if it should take its cue from the UK, which had then already restricted corporate directorship by requiring all companies to appoint at least one natural person as director.31 As in the UK, this consultation identified several important advantages allowing corporate directorships may have.

Firstly, it found that corporate directorships were seen by “a large number of respondents” to provide flexibility in the management of companies.32 A useful example was raised to illustrate the convenience and flexibility that having a corporate director allows, which is that other directors of the corporate director can sign any necessary documents when another director is unavailable, for example where he has to take frequent business trips.33 In companies with group structures, appointing a corporate director can also help with maintaining group cohesion between subsidiary or associate companies, as the parent company retains direct control.34 Additionally, it observed that particularly for corporate service providers, corporate directorships afforded greater benefits, as clients may 26 27 28 29 30 31 32 33 34

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Id. Id. Id. Id. Rewrite of the Companies Ordinance (Cap 32) Id. [25] Id. [27] Id. Id.

“find greater trust in a professional corporate service provider than an individual”.35 Such companies may also be able to cut down on the costs and time spent filing updates of directors with the Companies Registry, especially considering the high turnover rate of staff in the corporate services industry.36 However, a ban on corporate directorships was not without its supporters. Respondents to the consultation, which included the MPFA and Consumer Council among other important stakeholders in Hong Kong, agreed that continuing to allow corporate directorships would “increase difficulties in enforcement or may hamper transparency and accountability”.37 Some of the concerns arising from issues of transparency and accountability are that companies may quite easily set up shell companies by appointing a corporate entity rather than a natural person as director. These shell companies may then be used for illicit activities such as money laundering or even terrorist financing. Without a natural person appointed as director, it may prove difficult to apportion liability fairly where such offences have been committed. Although it was also argued that having “sufficient compliance and transparency requirements” among other checks would combat such problems,38 the conclusion reached in the face of equally valid arguments for and against the ban on corporate directorships was that a balance had to be struck between the need to enhance corporate governance and transparency and that of flexibility in order to maintain Hong Kong’s competitive edge.39 This balance was found to be best struck by the approach that the UK had taken, which was to allow corporate directorship on the condition that at least one of the directors was a natural person.

As such, while a ban was placed on public companies appointing a corporate director, the use of corporate directorships in private companies was not subject to a similar ban but allowed as long as it was not linked to a publicly listed company and had also appointed a natural person as one of its directors.40 With this careful and considered restriction of corporate directorships, the Hong Kong government allayed any fears of “an exodus of companies” that would set up shop in other jurisdictions that permitted corporate directorship instead.41 In this way, the corporate governance objectives could be reached while still maintaining business flexibility and ensuring that the reform would not drive investment away from the competitive Hong Kong market. 42 The proposals were implemented in the new Companies Ordinance (NCO) that has become effective from March 2014.43 Although the reforms made did not take into account the latest proposals discussed in the UK, similar considerations were taken into account. The Hong Kong government was likewise concerned about the possible detriment that continuing to allow corporate directorships might pose to the public policy objectives of accountability and financial transparency.

Nonetheless it reached the same conclusion that it would not be beneficial to ban corporate directorships entirely and therefore introduced certain exceptions. This is however where they differ, in that they utilise different means to ascertain the exceptions to allow. While Hong Kong focused on instituting a natural person to be a director as a safeguard for private companies with corporate directors, the UK went a step further by differentiating 35 Id. 36 Id. 37 Id. [26] 38 Id. 39 Id. [30] 40 Rewrite of the Companies Ordinance (Cap 32) [30] 41 Id. [28] 42 Ji Lian Yap, ‘De facto directors and corporate directorships’ (2012) 7 JBL 579, 580 43 Mark Shipman, Matthias Feldmann and Neeraj Budhawani, ‘Private equity in Hong Kong: market and regulatory overview’ (2014) <http://uk.practicallaw.com/5-500-5721> accessed 15 July 2015

between different types of companies and coming up with some criteria by which to decide if the exception from the general ban on corporate directors would be justified. We will now look at whether these approaches are applicable in Singapore and if they would be useful case studies upon which to base possible law reform on.

CONSIDERING THE ROLE OF CORPORATE DIRECTORSHIPS IN SINGAPORE Singapore has traditionally disallowed the use of corporate directorships. Under section 145(2) of the Companies Act,44 there is enshrined a requirement that companies can only have a natural person as one of its directors, who also has to be of or above the age of 18 years and is of full legal capacity.45 This strict requirement that only a natural person can be a director of a company has been in place since 1967.46 However, a proposal to allow corporate directorships was considered by the Steering Committee in 2007, led by Professor Walter Woon in discussion with senior public and private sector members. As with the FSTB in Hong Kong, the committee found that instituting a corporate director may be advantageous for a business in that it allows a parent company to “facilitate group cohesion” among its subsidiaries.47 This may be especially helpful for multinational corporations (MNCs), since the parent company may not be based in the same country as that of its subsidiary. In this case, if a parent company could institute itself as the corporate director of its subsidiary, it could run the firm directly from abroad, instead of having to appoint a natural person to do so on its behalf. As observed in the review conducted in Hong Kong, it was found that having a natural person as director may have a negative effect on cost and time efficiency.

Additionally, an argument was made that allowing the creation of corporate directorships would “encourage the growth of company incorporations in Singapore”.48 This is particularly important as Singapore continues to seek sustained economic growth in the face of competition from its neighbours, many of which have rising Asian markets. Without the use of this mechanism, some companies may be discouraged from setting up a subsidiary or associate company in Singapore and instead choose to base their business elsewhere. This is especially true of foreign companies that are looking to tap into Asian economies.

Nevertheless, the recommendation made by the Steering Committee in their 2011 report was that allowing corporate directorships in Singapore would be unnecessary.49 The conclusion reached by the Steering Committee can be better understood when read with the aims set out for the Committee.

Specifically, the Committee was charged by the Minister for Finance to “provide flexibility and clarity…without compromising the interests of stakeholders and the public”. Additionally, it was to “promote greater accountability and transparency”.50 In Singapore’s case therefore, these policy concerns meant that the decision of the Steering Committee was strongly in favour of maintaining the current ban on corporate directorships, despite the strong arguments for allowing the limited use of corporate directorships. As such, the Companies (Amendment) Bill that was passed by Parliament in October 2014 and announced by the Accounting and Corporate Regulatory Authority (ACRA) 44 Companies Act (SG) 45 Ministry of Finance, Report of the Steering Committee for Review of the Companies Act (June 2011) [23] 46 Id. 47 Id. [25] 48 Id. [24] 49 Ministry of Finance, Report of the Steering Committee for Review of the Companies Act (June 2011) [26] 50 Id. [6]

will continue to ban corporate directorships in Singapore.

Yet as Hong Kong and the UK has shown, it is possible to reach a potentially more equal balance between the objectives of upholding public policy goals and encouraging the growth of company incorporations through allowing corporate directorships. One argument against the complete ban of corporate directors raised in Hong Kong was that with sufficient and effective compliance and transparency requirements, it would be possible to ensure the corporate directorships were not used for any wrongdoing.51 In Singapore, there is an active watchdog, ACRA, to ensure compliance with the existing safeguards. ACRA has also recently announced a more targeted approach in order to “promote transparency…while inculcating a culture of voluntary compliance among firms”. Instead of being prosecuted for a first offence, ACRA will have directors who have breached the Companies Act52 for the first time attend the Directors Compliance Programme, which will focus on their basic statutory obligations. Repeat offenders however, could be charged with fines of up to $10,000 or jail of up to two years for breaches of the Companies Act. In a strong statement, ACRA has also said it will “seek high deterrent fines” in court for such breaches by individuals and companies.53 Other provisions include the existing automatic disqualification regime for offences involving fraud or dishonesty, as well as the new section 155A of the Companies Act that provides for a five-year disqualification period where individuals who was a director in at least three companies was struck off by the registrar within a five-year period.54 These existing safeguards could hence be said to have created a suitably transparent corporate culture in Singapore, which would allow the use of corporate directorships to flourish rather than become another means to avoid liability.

As Singapore already makes it compulsory for a director of a company to be a natural person, it could consider the additional criteria that the BIS has recommended by differentiating between different types of companies and coming up with further criteria by which to decide if the exception from the general ban on corporate directors would be justified. In doing so, it could first take a conservative approach in only allowing private companies with a group structure to appoint corporate directors, as such companies arguably benefit directly in that it allows them to operate as a cohesive entity. Coming up with a set of criteria before relaxing the strict ban on corporate directors would not destabilise the existing corporate regime in Singapore especially with other safeguards in place but may quite possibly encourage greater economic growth by attracting large corporate entities such as MNCs to set up offices and invest in Singapore.

As such, the public policy goals of financial transparency and accountability can be upheld even if corporate directorships are allowed.

Nevertheless, Singapore seems to take the stance that it has little reason to lift its complete ban on corporate directorships, despite acknowledging the advantages of allowing corporate directorships. As yet, without significant competition from other countries that similarly do not allow corporate directorships, Singapore has deemed it unnecessary to introduce this form of directorship in Singapore to attract more investment55 at the risk of losing our high ratings for accountability and transparency in the corporate arena. However, it is argued that the corporate directorship holds certain advantages that may warrant further consideration in Singapore’s on-going efforts to attract greater investment and economic growth.

51 Rewrite of the Companies Ordinance (Cap 32) [26] 52 Companies Act (SG) 53 Chia Yan Min, ‘Training instead of prosecution for errant company directors’ The Straits Times (Singapore, 22 July 2015) 54 Companies Act (SG) Section 155A 55 Ministry of Finance, Report of the Steering Committee for Review of the Companies Act (June 2011) [26]

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J201407290045682

When a fiduciary, in breach of his obligation of loyalty, takes a bribe or secret commission, should a constructive trust (CT) be imposed over that bribe? This has been a controversy since the 19th century and the Supreme Courts of Singapore and the United Kingdom have answered in the affirmative. The following two articles serve as a debate, with Myron Phua advocating a pro-CT approach while Tan Wei Ming argues that the courts should reconsider their position and not impose a CT over such bribes.

image: AmericanConference.com

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Salvaging Simplicity: The Conceptual Implications of FHR European Ventures LLP v. Cedar Capital Partners

By Myron Phua The truism that the “pure and simple truth is rarely pure and never simple”1 holds for both Law and Life, particularly where it comes to fathoming why constructive trusts arise as they do in response to certain forms of fiduciary conduct. Because constructive trusts invariably involve re-allocative proprietary consequences,2 simplicity in this area should be sought3 and yet distrusted.4 My central thesis herein is that the “simple answer” in FHR European Ventures v. Cedar Capital (“FHR”),5 to the problem6 of whether a constructive trust would be imposed over bribes taken by a fiduciary in breach of his fiduciary duties demands salvaging. The rule thereby laid was ostensibly that all bribes (and on one reading of the case, all assets) received by a fiduciary qua fiduciary in breach of fiduciary duty would be held on constructive trust for the benefit of that fiduciary’s principal.7 I seek to demonstrate that FHR’s “simple answer” belies conceptual complications hitherto inadequately addressed at case law.8 While FHR does answer the questions of “when” and “whether” a constructive trust will arise over bribes taken by a fiduciary, the “why” question – why a constructive trust should arise at all – remains largely unaddressed.9 The doctrinal impasse existing between two mutually contradictory explanations of FHR’s result:10 identifiable respectively as the ‘disability thesis’ and the ‘wrongdoing thesis’, has not been resolved. They emerged in the earlier case of Attorney General for Hong Kong v. Reid (“Reid”),11 and are now both apparently affirmed in FHR, perpetuating conceptual incoherence. Singaporean law is therewith implicated, because Reid itself had affirmed the Singaporean High Court case of Sumitomo Bank v. Thahir (“Thahir”),12 which stood for the ‘wrongdoing thesis’ and not the ‘disability thesis’.

Comparably, the Singaporean Court of Appeal (“SGCA”) in Guy Neale v. Nine Squares (“Guy Neale”),13 later approved obiter 1 Oscar Wilde, The Importance of Being Earnest, A Trivial Comedy for Serious People (London: Leonard Smithers & Co, 1899), Act I, 7 2 See John McGhee (ed.), Snell’s Equity (London: Sweet & Maxwell, 33rd Ed. 2014), 21-002.

3 On the basis of non sunt multiplicanda entia sine necessitate; or Occam’s razor. See e.g. Jetivia SA v. Bilta [2015] UKSC 23, [106] (per Lord Sumption).

4 Commissioners of Customs and Excise v. Barclays Bank [2006] 3 WLR 1, 19, [51] (per Lord Rodger). Judicial exhortations to tread warily where it comes to creating proprietary remedies abound: see Lord David Neuberger, ‘The Remedial Constructive Trust - Fact or Fiction’, Banking Services and Finance Law Association Conference (10 August 2014), [27] et seq.; Sir Terence Etherton, ‘The Legitimacy of Proprietary Relief, (2014) 2(1) Birkbeck Law Review 59, 83-84.

5 [2014] UKSC 45; [2015] A.C. 250 6 Etherton, (n. 4), 59-63.

7 Cf. McGhee, Snell’s Equity, (n.2), 7-057.

8 Academic debate on the subject, on the other hand, is voluminous.

See Etherton, (n. 4), 59-60.

9 See Thahir Kartika Ratna v. Sumitomo Bank [1994] 3 SLR(R) 312 cited in Guy Neale v. Nine Squares Pty Ltd [2014] SGCA 64, [130], approving Attorney General for Hong Kong v. Reid [1994] 1 AC 324, which approved the earlier Singaporean High Court decision of Sumitomo Bank v. Thahir Kartika Ratna [1992] SGHC 301.

10 James Penner, ‘The Difficult Doctrinal Basis for the Fiduciary’s Proprietary Liability to Account for Bribes’ (2012) 18 Trusts & Trustees 1000 11 [1994] 1 AC 324 12 [1992] SGHC 301 13 Guy Neale v. Nine Squares Pty Ltd, (n.9), [129] – [130]

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of all three decisions, being seemingly unappreciative of the conceptual inconsistencies at hand.14 Thus, I shall show hereinafter that both the English and Singaporean treatment of the “why” question is, with respect, hitherto inaccurate and unsatisfactory, and must now properly be addressed.

1. THE “SIMPLE” POSITION POST-FHR The facts of FHR are well-rehearsed. A fiduciary received a ‘secret commission’ from the vendors of a hotel in return for it to be bought by his principal at a price favourable to the vendors.15 The ratio of FHR, on the other hand, is less evident. A closer reading reveals two aspects to its ratio decidendi – a narrower, and a wider: First, FHR settles beyond dispute that a fiduciary who has received bribes qua fiduciary holds those bribes on constructive trust for his principal.16 This fundamentally modifies the erstwhile position in Sinclair v. Versailles,17 whereby a constructive trust would only arise if the bribes could be treated as either: (1) having been the beneficial property of the principal, or (2) having been acquired by the fiduciary “taking advantage of an opportunity or right which properly belonged to that of the principal”.18 Second, FHR could be taken to have ruled that, as several writers19 along with the SGCA20 have deduced, all receipts of property by a fiduciary qua fiduciary in breach of his duties would now be subjected to a constructive trust. If this were correct, then the rule governing bribes would be conceptually identical to, and a mere instance of, an overarching “broad remedial principle”21 hearkening back to Keech v. Sandford,22 which subjects property acquired by a fiduciary in breach of the ‘no profit’23 and ‘no conflict’24 rules to a constructive trust.25 While it is now clearly settled that bribes received by a wayward fiduciary will be held on constructive trust, the problems with both aspects of FHR’s ratio are manifold and belie its claim to desirable simplicity.

Chiefly, it was not at all evident that the arguments for and against the imposition of a constructive trust, contra Lord Neuberger’s reasoning, were so evenly balanced that neither was “plainly right or plainly wrong”.26 The fallacy, with respect, 14 Id. 15 FHR, (n.5), [2]-[3] 16 FHR, (n.5), [46] et seq.

17 Sinclair Investments v. Versailles Trade Finance Ltd [2011] EWCA Civ 347 18 Ibid., [89]. This practically meant that a constructive trust would hardly ever arise and that a principal was left to a personal claim against his fiduciary.

19 Including Justice William Gummow and Justice David Hayton: see William Gummow, ‘Bribes and constructive trusts (2015) 131 LQR. 21-26; David Hayton, (2014) 35(9) Company Lawyer 257-258; contra Derek Whayman, Proprietary remedy confirmed for bribes and secret commissions, (2014) 6 Conv. 518-525. Cf. Matthew Conaglen, ‘Proprietary remedies for breach of fiduciary duty’ (2014) 73(3) C.L.J. 490-493, and Elizabeth Houghton (2014) 20(10) Trusts & Trustees 994-1005, 998 20 Guy Neale, (n.9), [129]-[130] 21 Andrew Hicks, ‘The Remedial Principle of Keech v. Sandford Reconsidered’ [2010] CLJ 287–320. Cf. Grimaldi v. Chameleon Mining NL (No 2) [2012] FCAFC 6, [183] 22 [1726] EngR 954 23 Bray v. Ford [1896] A.C. 44 at 51; Aberdeen Railway v. Blaikie Bros (1854) 1 Macq. 461 at 471; Wright v. Morgan [1926] A.C. 788 at 797, cited in McGhee, Snell’s Equity, (n.2), 7-018 24 Boardman v. Phipps [1967] 2 AC 46, 103, 105 and 115; McGhee, Snell’s Equity, (n.2), 7-041 25 See McGhee, Snell’s Equity, (n.2), 7-057 26 FHR, (n.5), [32]

consists in the assumption that the arguments supporting FHR are mutually compatible and can be aggregated as tending towards a unitary, cumulatively-perfected conclusion. However, one would find upon closer inspection that the reasons tendered are actually incompatible with each other, and admit not of a single, coherent thesis.

Instead, as elaborated below, there exist two disparate theoretical claims (“theses”) supporting FHR’s result. This phenomenon, left wholly unaddressed, creates an irremediable rift in the Supreme Court’s approach to resolving the “why” question. There was no need for a “tie-breaker” at all based on a “tournament”27 of “wider policy considerations”,28 nor for the Supreme Court to eschew constructing a single conceptual answer seemingly on the premise that there was none to be found. Instead, and with respect, the Court’s haphazard enlisting of an assemblage of reasons supporting the imposition of a constructive trust was not capable of properly rationalising “why” it was imposed.

What was needed was the identification of a single, coherent thesis, and – only then – an accompanying exegesis of the “wider policy considerations”29 that underlay the thesis’ formal structure.30 What the Supreme Court gave, however, was a grand assortment of motives ranging from: the opprobrium of bribery,31 the high likelihood of “hidden inflation” in the contract price at the expense of the principal where bribes are taken,32 the clarity and simplicity of the ‘broad remedial principle’ applying to all receipts,33 the incongruence of allowing a proprietary claim against honest Boardman but not the bribe-taker,34 to analogies with agency law,35 and the “just” functionality of enabling a principal to trace and follow the proceeds of a bribe.36 Such reasoning, with respect, is unsound. A proposition of law is not created by the mere, unstructured aggregation of first-order37 normative reasons38 outwith a formal, logical framework. Just as an unassembled pile of bricks do not make a house, so must the normative reasons underlying a rule and the form it takes be conceptually organised. For example, it is specious to say that the nefariousness of bribery coupled with the possibility of the value of a bribe received being added to the contract price for which the hotel was sold justifies the imposition of a constructive trust over it. The logic of that claim is incomplete because there is no intermediate link between the variant motives and the common outcome for which they are tendered – unlike say, a claim that bribe-taking, when occasioning a loss of benefits a principal would otherwise have received, constitutes a legally identifiable ‘wrong’ which warrants proprietary restitution.

In other words, the “why” question demands a cohesive answer to be given both at the conceptual and the normative level, not a parade of policy reasons. The concept, so structured, exists as a formalised product of the motives. The reasoning of the Supreme Court in FHR, however, renders its product incoherent, inchoate, and the “why” puzzle unsolved.

27 Etherton, (n. 4), 81 28 FHR, (n.5), [42] 29 Ibid,. [42] et seq.

30 Cf. Elizabeth Houghton, (2014) 20(10) Trusts & Trustees 994-1005, 1003 31 FHR, (n.5), [42] 32 Ibid., [37], [43].

33 Ibid., [35]–[36] 34 Ibid., [41] 35 Ibid., [33] 36 Ibid., [44] 37 See Joseph Raz, Practical Reasoning and Norms (New Jersey: Princeton University Press, 2nd Ed. 1990), 39-40 38 “Norm” here is used in the sense as a reason that motivates or guides individual behaviour. See James Penner, The Idea of Property Law (Oxford: OUP, 1997), 7-13

2. THE “WHY” QUESTION AND ITS TWO POSSIBLE ANSWERS Any student would recall Lord Neuberger MR having rhetorically questioned in Sinclair, “… why, it may be asked, should the fact that a fiduciary is able to make a profit as a result of the breach of his duties to a beneficiary, without more, give the beneficiary a proprietary interest in the profit?”.39 Sinclair has now been overruled by FHR “to the extent that it relied on Heiron”.40 Yet, with respect, his Lordship did not convincingly answer his own question in FHR. One is therefore left to extrapolation. FHR, much like Reid before it, discloses two implicit conceptual rationales supporting its result. They are the ‘disability’ and the ‘wrongdoing thesis’, respectively, as shall be explained hereafter. They cannot be conflated as unitary.

2.1 THE ‘DISABILITY THESIS’ The ‘disability thesis’ might be regarded by modern eyes as one of those little-explained ‘fairy tale’ rules41 of old Equitable jurisprudence: strange,42 contrived,43 or even disingenuous. I shall suggest hereafter that it is merely misunderstood. Happily, writers have recently sought to explain it, though not without nuances between them.44 Fundamentally, the ‘disability thesis’ holds that a fiduciary is ‘disabled’ in Equity’s eyes from beneficially owning any asset received in breach of fiduciary duty, whether a bribe or an illicit profit.45 The “reason that the fiduciary holds the profit [or bribe] in trust for his principal is that in the eyes of equity he lacks capacity to hold it for his own benefit”.46 Why does this “incapacity” exist? Orthodoxy holds the disability an intrinsic conceptual consequence of the fiduciary having undertaken fiduciary obligations, chiefly the obligation of ‘loyalty’,47 which Equity automatically enforces.48 Thereby, even where a fiduciary receives legal title to a bribe, he will not have acquired the beneficial interest in the same. Equity insists that he has acquired it for his principal instead.49 A constructive trust is imposed upon the asset, but being merely the means through which Equity denotes that it belongs to the principal and not the fiduciary.50 Importantly, this constructive trust arises not as a restitutionary 39 Sinclair, (n.17), [52]. Cf. Lord Peter Millett, ‘Bribes and Secret Commissions Again’ [2012] CLJ 583–614 40 FHR, (n.5), [50].

41 cf. AIB Group v. Mark Redler & Co [2014] UKSC 58, [69] (per Lord Toulson). Cf. Simon Gardner, ‘Two Maxims of Equity’ (1995) 54(1) Cambridge Law Journal 60 42 Charles Mitchell, ‘Equitable Compensation for Breach of Fiduciary Duty’, (2013) Current Legal Problems 1–33, 9-10 43 Wiliam Swadling, ‘Constructive trusts and breach of fiduciary duty’, (2012) 18(10) Trusts & Trustees 985-999; Robert Chambers, Constructive Trusts and Breach of Fiduciary Duty’ (2013) 77 Conv 241, 249-250.

44 Millett, (n.39); Lionel Smith, ‘Fiduciary relationships: ensuring the loyal exercise of judgement on behalf of another’, (2014) LQR 608, 628, and fn.

61; Paul Miller, “Justifying Fiduciary Remedies” (2013) 63 U.T.L.J. 570.

45 Mitchell, (n.42). See also Lord Peter Millett, ‘Proprietary Restitution’ in Simon Degeling and James Edelman (eds.), Equity in Commercial Law (Sydney: Lawbook Company 2005), Chapter 6, 309, at 324.

46 Lord Peter Millett, Publication Review: Account of Profits, (2014) LQR 681, 683 47 Millett, (n.39), 585, 591-592; cf. Houghton (n.30), 1001-1003 48 This is sometimes described as “equity regard[ing] as done that which ought to be done”. See Millett, (n. 39), 583 49 Millett, (n.39), 585 50 Smith, (n.46), fn. 86

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response to the fiduciary’s wrongdoing. 51 Instead, it is no different from that which occurs when any other assets are received in breach of the ‘no conflict’ and ‘no profit’ rules.52 So far anterior is Equity’s enforcement of fiduciary obligations that it ensures that a fiduciary is “disabled” ex ante the receipt from even beneficially owning assets received in breach. A fiduciary is not merely liable to be disgorged ex post under a given set of conditions needed for disgorgement.53 Thus, what might appear prima facie a proprietary remedy is but a conclusion flowing from the existence of the fiduciary ‘obligation of loyalty’ as embodied by the ‘no conflict’ and ‘no profit’ rules.54 The ‘disability thesis’, therefore, is conceptually incompatible with its mutually exclusive alternative, the ‘wrongdoing thesis’.

2.2 THE ‘WRONGDOING THESIS’ The ‘wrongdoing thesis’ conceives the rule in Reid and FHR as effecting restitution for wrongs.55 It treats the constructive trust arising when a fiduciary receives a bribe as cognate with the kinds of constructive trust that arise in response to wrongdoing.

56 A fiduciary holds the bribe on constructive trust for his or her principal because there exist normative, mostly policybased, reasons, peculiar to the context of bribe-taking, for the classification of bribe-taking as a form of wrongdoing which attracts a proprietary remedy.

Bribery, under this view, is regarded an evil for which the ‘vigour’ of the modern constructive trust as a restitutionary remedy, and as a form of deterrence,57 is needed. Accordingly, ‘societal mores and justice’ demand no less, given that receiving assets in breach of the ‘no conflict’ and ‘no profit’ rules already give rise to a proprietary remedy, however honest the fiduciary.58 There is no need for a prior ‘proprietary base’ or link with the principal’s assets, so the “wrongdoing thesis would claim, because bribery is especially wrongful and must be deterred by the strongest possible means available.59 Singaporean law, at least initially,60 has adopted the ‘wrongdoing thesis’. In Thahir (HC), Lai J explained that:61 “... [T]he law which affords a proprietary restitutionary remedy by the imposition of a constructive trust has been developing with increasing vigour only in the last quarter of a century... I am unable to accept, if I can help it, that a fiduciary… who accepts illicit bribes is not declared as a constructive trustee and is only liable to account whereas an honest fiduciary … is declared to be a constructive trustee. In my view a court in Singapore when exercising its equitable jurisdiction must reflect the mores and sense of justice of the society which it serves.”

One can observe that these two theses, while each reaching the result that bribes received are held on constructive trust, each involve fundamentally dissimilar conceptual premises. The 51 Millett, (n.39), 585 52 E.g. Boardman v. Phipps [1967] 2 A.C. 46 53 Smith, (n.46), 628-629 54 Smith, (n.46), 628. Cf. Miller (n.46), 616 55 See Peter Birks, An Introduction to the Law of Restitution, (Oxford: Clarendon, 1st Ed. 1985), 313.

56 See generally McGhee, Snell’s Equity, (n.2) Chapter 26. Cf. Guy Neale, (n.9) 57 Grimaldi, (n.83), [576] 58 Thahir, (n.12), [241]. Reid, (n.11), 330-331 59 Grimaldi, (n.83), [576], [582] – [584] 60 Thahir, (n. 68). Cf. the SGCA’s subsequent affirmation of both Thahir and Reid: Thahir (CA), [56] – [59]; 61 Ibid.,[241].

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existence of an anterior ‘disability’ would render the need to effect restitution for wrongdoing non-existent: no restitutionary response is needed where a rule operates ex ante to divert beneficial ownership of a fiduciary’s receipts to his principal.

Contrariwise, the ‘wrongdoing thesis’ is not concerned with the ontology and effects of fiduciary obligations. It does not analyse whether a fiduciary could, consistent with his fiduciary obligations, beneficially hold assets received in breach of them. Rather, it focuses on the deed of bribe-taking per se, acknowledging how objectionable it is, and consequently with fashioning a specific restitutionary response to that deed.

Thus, we behold the vice of the Simple Rule in FHR. The Supreme Court paid no heed at all to the existence of the two conflicting theses. It simply selected the ‘trust’ solution and purported to rationalise it via an unstructured medley of motives. With respect, FHR, insofar as it affirmed Reid simpliciter without clarifying it, has perpetuated a conceptual muddle.62 3. THE PROBLEM’S ORIGINS: REID Since Reid has been adopted as representing Singaporean law,63 rationalising the post-FHR position requires resolving Reid’s problematic affirmation of, simultaneously, the reasoning in Thahir (HC) and of Lord Millett’s advocacy of the ‘disability thesis’. If coherence is to be achieved, rectifying the post-FHR position necessarily involves repudiation of at least part of Reid’s reasoning.

The facts of Reid, too, are well-known. A Crown prosecutor in Hong Kong took bribes, with which houses in New Zealand were then bought. It was found that Reid held those bribes on constructive trust, thereby allowing his principal to trace his interest into the houses and to assert a proprietary claim. What is of especial import is the way by which this conclusion was reached. As Professor Penner has observed, Reid was decided on two “mutually inconsistent bases”,64 in that Lord Templeman appeared to adopt both theses at once.65 This was illogical because either Reid, in receiving a bribe, had committed a wrong for which a restitutionary remedy had to be fashioned ex post, or, that there was something anterior to Reid’s receipt of the bribes so that the beneficial interest in those bribes vested not in him but in the Crown instead. While both explanations result effectively in a constructive trust arising, their methodologies fundamentally differ. They cannot operate as complementary explanations.

The ‘wrongdoing thesis’ portion of Reid manifests in Lord Templeman’s express reliance on Thahir (HC). Lai J, in Thahir, had identified the constructive trust imposed as a “proprietary restitutionary remedy” for wrongdoing.66 His Honour reasoned that a constructive trust would arise because a fiduciary receiving a bribe was, in short, wholly uncondonable and had to be deterred by the strongest possible means.67 Accordingly, Singaporean societal “mores and [its] sense of justice” demanded that a proprietary remedy be available; a fortiori since the rule was already that an honest fiduciary making a profit in good faith would hold that profit on constructive 62 Cf. Houghton, (n. 30) 63 Thahir (CA), [56] – [59]; Guy Neale, (n. 14) [130].

64 Penner, (n.10), 1000-1001 65 Ibid, 1002-1004 66 (n.12), [241] – [242] 67 Lai J appeared to have accepted counsel’s submission at [198] that “… a court of equity must not countenance the taking of bribes and must use every available means to deter corrupt practices”. Compare Grimaldi, (n.83) at [576].

trust.68 The cases which stood for the contrary, Lister and Heiron, were not followed because they were, first, inconsistent with precedent and, second, would occasion “undesirable and unjust consequences”.69 Tellingly, Lai J held in the alternative that Thahir could be distinguished from Lister,70 given that the former was a public servant entrusted with “vast amounts of public funds”.71 The implicit premise here was that a breach of fiduciary duty by a public servant was a greater wrong than that malfeasance by a commercial agent, thus justifying a constructive trust even where personal liability might ex hypothesi suffice in the latter case. This suggests that the degree of dolus of a fiduciary’s breach decides what the restitutionary response to the receipt of a bribe should be.

However, Lord Templeman proceeded also to endorse Sir Peter Millett QC’s argument, which embodied an early form of the ‘disability thesis’. His Lordship then apparently conflated both views, concluding that both Thahir (HC) and Lord Millett’s argument demonstrated “… the extent to which equity is willing to impose a constructive trust on property obtained by a fiduciary by virtue of his office … [who] ... must not be allowed by any means to make any profit from his wrongdoing”.72 With respect, this was a conceptual muddle. Lord Templeman treated both theses as compatible, and perhaps cumulative reasons for the imposition of a constructive trust. But two contradictory answers here amount to no answer at all, because they each identify different causative events for the Reid trust, thereby embarrassing the other’s logic. They also distract us from noticing that the trusts in Reid and FHR might have been no different from those which arose in Boardman v. Phipps, Regal (Hastings) v. Gulliver,73 or whenever property was received in breach of fiduciary obligations. Therefore, with respect, any rationalisation of the FHR rule necessities a partial bluepencilling of Reid. Reid cannot be celebrated, as it was in Thahir on appeal74 and in Guy Neale,75 as being correct in toto.

4. RATIONALISING THE POSITION POST-FHR

over Sinclair, Lord Neuberger canvassed the ‘wider policy consideration’ that “bribery [was] an evil practice [threatening] the foundations of any civilised society”,76 and that secret commissions “undermine[d] trust in the commercial world”.77 Accordingly, this buttressed the need for the law to be “particularly stringent” as a matter of policy. His Lordship also noted that it was “just that a principal whose agent has obtained a bribe... should be able to trace [its proceeds] into other assets and to follow them into the hands of knowing recipients”.78 Thus, the perceived need for the ability to trace, too, justifies the ex post imposition of a proprietary remedy.

These claims are consistent only with the ‘wrongdoing thesis’, which inquires whether there exists sufficient justification for the creation of proprietary remedial right where a prior ‘proprietary base’ or link between the principal and the bribe does not exist. Conversely, the ‘disability thesis’ would regard the ‘policy’ benefits of the FHR rule as not directly relevant to the existence of a specific rule that rendered bribes received held on constructive trust, for it treats the rule as being fundamentally an incident of fiduciary obligations and Equity’s ability to enforce them.

Second, the Supreme Court clearly perceived “harmonising the development of the common law round the world” as a factor favouring Reid’s result. Reference was made to Australian law79 (Chan v. Zacharia80 and Grimaldi v. Chameleon Mining (No. 2)),81 Canadian,82 and Singaporean law. Its portent lies in that, it is not entirely clear how well the ‘disability thesis’ can account for the Commonwealth cases, which seem on the whole to favour the ‘wrongdoing thesis’ instead.83 Lord Millett appears to have suggested that cases like Chan and Grimaldi are not inconsistent with the idea of a ‘disability’ since they acknowledge that fiduciary would hold bribes on constructive trust. With respect, however, it is difficult to reconcile the ‘disability thesis’ with the fact the Commonwealth cases in fact involved true remedial constructive trusts which are always discretionarily created and do not arise automatically upon a fiduciary’s receipt.84

Having identified the problems with Reid, the English lawyer’s question then becomes: which thesis can FHR be best construed, as a matter of precedent, to have affirmed? The Singaporean lawyer, too, would ask: which thesis does Singaporean law adopt, if Reid and FHR form part of Singaporean law?

The English lawyer, hence, must deal with these two indicia supporting the ‘wrongdoing thesis’, should the ‘disability thesis’ be preferred.

As shall be demonstrated, the Supreme Court in FHR did not provide a clear answer. Instead, it vacillated confusingly between the two theses at various points in its reasoning, being possibly even nescient of the existence of the theoretical choice to be made. Thereafter, I shall attempt to construct an answer from what material FHR affords us and from first conceptual principles, finding ultimately in favour of the ‘disability thesis’.

On the other hand, several parts of FHR could be seen as indicating a preference for the ‘disability thesis’ instead, though again falling short of express avowal. These should be seized upon both by lawyers, both English and Singapore, seeking to defend the ‘disability thesis’.

4.1 PRO-WRONGDOING However one might defend the ‘disability thesis’ – as the SGCA in Guy Neale marginally appears to be doing – it cannot be denied that two aspects of FHR provide support for the ‘wrongdoing thesis’ instead.

First, in enumerating the reasons why Reid should be preferred 68 69 70 71 72 73 74 75

Ibid., [241].

Id. Ibid., [242].

Id. Reid, (n.11), 337-338 Regal (Hastings) Ltd v. Gulliver (Note) [1967] 2 AC 134 (n.68), [56]-[57] Guy Neale, [130]

4.2 PRO-DISABILITY

First, it is incontrovertible that the Respondents (FHR), led by Pymont QC, founded their case on the academic arguments of Lord Millett and Professor Lionel Smith, which both adopted the ‘disability thesis’.85 Insofar as it can be argued that the Supreme Court accepted the Respondents’ case, therefore, it could be regarded as an implicit acceptance of the same.86 The issue, 76 FHR, [42] 77 Id. 78 FHR, [44] 79 Hospital Products Ltd v. United States Surgical Corporation (1984) 156 CLR 41 80 (1984) 154 C.L.R. 178 81 Grimaldi v. Chameleon Mining NL (No 2) [2012] FCAFC 6 82 Insurance Corporation of British Columbia v. Lo (2006) 278 DLR (4th) 148 83 McGhee, Snell’s Equity, (n.2),7-051; See also Mitchell, (n.x) 84 See e.g. Grimaldi, (n.83) [582] – [583]; Houghton, (n.30), 1003 85 FHR, (n.4) 257-260 86 McGhee, Snell’s Equity, (n.2), 7-057 treats FHR so. See also Gum-

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however, is identifying the extent to which the Respondents’ submissions were accepted.

As far as the Court did not appear to reject, but did instead commend, the comparison between the “fundamental principles of the law of agency”87 to the circumstances in which a principal can claim the beneficial ownership of his fiduciary’s receipts, the ‘disability thesis’ does appear to be implicitly sanctioned.88 This accords with Guy Neale’s reading of FHR, meaning that the SGCA’s interpretation too can be interpreted as affirming the ‘disability thesis’.

Further, the Supreme Court’s conclusion that the “… the law took a wrong turn in Heiron and Lister”,89 hints an acceptance of the position at case law as it stood before 1880, viz. the authorities that Lord Millett recounts,90 such as Diplock v. Blackburn,91 Fawcett v. Whitehouse,92 and Sugden v. Crossland,93 and the old cases cited in Reid which predate our modern ideas of restitution for wrongs by constructive trust and which do not employ restitutionary reasoning.94 These old cases invariably involve the application of the ‘disability thesis’.95 Additional support for this interpretation may also be found in Lord Neuberger’s speech made a few weeks after the FHR judgment, where his Lordship remarked that Lord Millett’s thesis was finally given its vindication in FHR.96 However, it still remains debatable how far an extra-judicial explanation, however cogent and felicitous of fit, can account for the fact that a seven-strong Supreme Court in FHR had omitted to give express affirmation of either thesis, and, equally crucially, had not explicitly affirmed the broad remedial rule that Guy Neale has interpreted FHR as having affirmed (as argued below) – bearing in mind that Sinclair was the governing authority then.97 Withal, it must be recognised that any interpretation of FHR as having adopted the Respondents’ submissions remains far from perfect. The unhappy result is that there exists no single, conclusively preferred answer to Lord Neuberger MR’s question in Sinclair to be found as a matter of case law in either jurisdiction. The courts of both jurisdictions are therefore left with the task of making sense of the present impasse. In this regard, I respectfully suggest that: (1) The SGCA interpretation of FHR’s laying down of a broad remedial rule, while not being descriptively correct, is normatively and conceptually the preferred interpretation.

(2) It is not enough for coherence, certainty, and an intelligible rationalisation of the law, that the broad mow, 21-23; Hayton, 257-258.

87 Namely, that a principal is entitled to the entire benefit of the agent’s acts in the course of his agency owing to the agent’s duty of undivided loyalty.

88 FHR, (n.5), [33].

89 FHR, (n.5), [50].

90 Millett, (n.39), 603-604.

91 (1811) 170 E.R. 1300 92 (1829) 1 R. & M. 132 93 (1856) 3 Sm. & G. 192 94 Mitchell, (n. 44) notes that the ‘wrongdoing thesis’ only emerged in the twentieth century after the vocabulary of Donoghue v. Stevenson made an impression even on Chancery lawyers.

95 Millett, (n. 39), 603-605.

96 Lord Neuberger, (n.4) 97 To recollect, prior to FHR, an asset acquired by a fiduciary in breach of duty would only be held on constructive trust for his principal in two situations, classified under “categories 2(a) and (b) in Sinclair”, where: (a) The asset (i.e. profit or receipt) had been the beneficial property of the principal; (b) The asset was acquired by taking advantage of an opportunity or right which properly belonged to that of the principal. See Sinclair, (n.17) [88].

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remedial rule be affirmed without also expressly choosing between the theses. Either thesis can be extracted from the ratio in Reid, and thus Thahir (CA), which affirmed Reid, does not preclude the severance of one for another.

(3) In that regard, the ‘disability thesis’ should be preferred and the ‘wrongdoing thesis’ discarded. I defend this position hereafter.

5. THE SUPERIORITY OF THE ‘DISABILITY THESIS’ The ultimate solution on both the English and Singaporean fronts is for the ‘wrongdoing thesis’ to be discarded, and the ‘disability’ thesis to be preferred. There are three arguments to be made: First, the Argument from Coherence: the ‘disability thesis’ provides a coherent – if not the only – basis for an overarching ‘broad remedial principle’. It integrates the result in Reid and FHR with that of the existing orthodoxy on receipts made in ‘breach’ of the ‘no conflict’ and ‘no profit’ rules.

Second, the Argument from Pedigree: the ‘disability thesis’ is historically the more accurate of the theses, and correctly reflects the ontology of the old equitable rules as seen in the 19th century cases, in which receipts in breach were simply deemed to have been received for the principal. Orthodox Equity is not capable of working in any other way when enforcing fiduciary obligations.

Third, the Argument by Elimination: the ‘disability thesis’ is capable of circumventing the arguments made by critics of Reid on how it is not possible as a matter of restitutionary theory for a proprietary remedy to be imposed sans a prior ‘proprietary base’.

Conversely, the ‘wrongdoing thesis’ crumbles wholesale under these objections and cannot be defended. There is a ‘plainly right answer’ between the theses, and once the ‘disability thesis’ is preferred, there is a ‘plainly right answer’ between the results.

I elaborate on my arguments hereafter.

5.1 THE ‘ARGUMENT FROM COHERENCE’ Any theory seeking to explain why the result in Reid was correct must be capable of establishing a logical link between the nature of fiduciary duties, their content, and the remedies Equity provides for their breach. Legal coherence,98 referring to a proposition’s ability to ‘fit’ with and be ‘justified’ by the sources surrounding it,99 should be the foremost test, not the unstructured consequentialism represented by the medley of reasons proffered in FHR.100 As Professor Worthington rightly observes, the theory which can “carry the day” amidst the welter of conflicting views must be one which best accounts for the “first principles in analysing fiduciary loyalty”.101 Therein lies the chief virtue of the equitable ‘disability thesis’.

98 Neil MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2006), 190, defining coherence as “… the property of a set of propositions which, taken together, makes sense in its entirety”.

99 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 86-87. See also James Lee, ‘Fidelity in interpretation: Lord Hoffmann and The Adventure of the Empty House’, (2008) 28(1) Legal Services 1-19 100 See Houghton (n.30), 1001. There is no denying that trust law and equitable doctrine trades in conceptualism: see James Penner, ‘An Untheory of the law of Trusts, or Some Notes Towards Understanding the Structure of Trust Law Doctrine’, (2010) 63 Current Legal problems 653 101 Sarah Worthington, ‘Fiduciary Duties and Proprietary Remedies: Addressing the Failure of Equitable Formulae’ (2013) 72 CLJ 720, 729, 731

It possesses a coherence and explanatory elegance that the wrongdoing thesis wholly lacks, fitting well with the orthodox structure of fiduciary obligations – the ‘no profit’ and ‘no conflict’ rules – and their understood effects. The ‘disability thesis’ presupposes a unitary102 view of the doctrinal nature of fiduciary obligations. It assumes that a fiduciary is subject to a single, overarching obligation of loyalty owed to his principal.103 The obligation of loyalty has not seen direct application as a rule in any given case on English fiduciary law, which conceives fiduciary obligations as being: (1) peculiarly fiduciary;104 and (2) consisting, as far as may be empirically observed,105 of the ‘no conflict’ and ‘no profit’ rules.106 However, the ‘disability’ that comes with a person assuming fiduciary office is not at all inconsistent with that phenomenon, because the obligation of loyalty here is not sought to be instated as an obligation capable of being enforced in its own right. This becomes clear when we realise that the ‘disability’ really is conceptual shorthand for the effect of the ‘no conflict’ and ‘no profit’ rules, and the rule creating the Reid trust is not an independent rule, but a mere instance of either rule, depending on whether the bribe is deemed a profit (as is invariably the case) or that a fiduciary’s bribe-taking also amounts to conduct creating a reasonable perception of a real risk of conflict.107 In other words, the ‘disability’ is a conclusion that a fiduciary is prevented by nature of the fiduciary office,108 from receiving the beneficial interest in any asset received pursuant to a breach.

Instead, the asset so received is held by the fiduciary automatically for his principal by dint of his fiduciary obligations. Why exactly fiduciary obligations normatively should have this effect has not been decisively settled – this being its chief admitted flaw. But at least three explanations have been tendered, which I label ‘prophylaxis’, ‘attribution’, and ‘prior undertaking’: (1) The disability is required in order to prevent, by true prophylaxis, not just a desire ive illicit gains, but a fiduciary’s actual capacity to do so.109 It turns injunction into reality: a fiduciary really ‘cannot’ receive illicit gains.

(2) The rule reflects the fact that a fiduciary has acquired part of the “… autonomy—part of the choicemaking ability—of the [principal]”, since a fiduciary relationship only arises because the principal has entrusted power over their affairs to the fiduciary. With the transfer of control, thus, comes the corresponding transfer of entitlement.110 (3) A fiduciary has implicitly promised or undertaken, by accepting the fiduciary institution, not only not to receive any property by use of his position, but also to 102 See Lionel Smith, ‘Constructive Trusts and the No-Profit Rule’, (2013) 72(2) CLJ 260-263, at 262. See also Etherton, (n.4), 82 103 On the overarching “obligation of loyalty, see Bristol and West Building Society v. Mothew [1998] Ch 1 104 Mothew, ibid., 16. See generally Conaglen, Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties (London: Hart Publishing, 2010), Chapter 8. See also McGhee, Snell’s Equity, (n. 2), 7-009 105 Conaglen, ibid.

106 Ibid.

107 Evidently, a fiduciary who receives a bribe is actually conflicted, because he is clearly preferring his own pecuniary interests, but little turns on this since the standard for “conflict”, being much lower, would in any case be incontrovertibly met.

108 Millett, (n.39), 585-586; Smith 2014 (n. x), 628 109 Millett (n.39), Conaglen (n. 19); cf. Smith (n.44), who disavows the existence of a need for deterrence.

110 Smith, (n.44) at 628-629. See also Houghton, (n.30), 19; Miller (n.44), 620-623,

have such gains attributed to the principal if he does so.111 Writers have tended only to identify one of the three reasons as underpinning the ‘disability’, but I respectfully suggest that it is a combination of all three. Having done so, the coherence of the “disability thesis” with the rest of fiduciary law becomes manifest. First, the disability’s ‘prophylactic’ office flows from the fact that it is really shorthand for the operation of fiduciary obligations, themselves quintessentially prophylactic and which are primarily, not reactively, enforceable.112 Second, the phenomenon of ‘attribution’ accounts for what substantively happens when one makes another a fiduciary – a transfer of autonomy, for which Equity demands a transfer of entitlement in return. Finally, the idea of a prior undertaking reflects that fiduciary obligations can only be voluntarily assumed,113 and of the institution as attaching its own legal incidents – obligations the content of which were historically crafted at law and not through consensus – once it has been assumed.

Conversely, the ‘wrongdoing thesis’ appears to be an interloper in the orthodox, unitary regime involving one broad remedial principle. There are two main objections.

First, the ‘wrongdoing thesis’ purports to apply to bribes alone. It identifies the act of fiduciary bribe-taking as having an especial normative significance, so that the imposition of a constructive trust is especially necessary. But this line of logic further presupposes the existence of other scenarios where the receipt of an asset in breach of fiduciary duty does not result in a constructive trust being imposed over it – a category which, as far as case law goes, seemingly has not been explored at all.114 To adopt the ‘wrongdoing thesis’, therefore, would be indirectly to create hypothetical gaps which otherwise would not exist amidst orthodoxy, breeding incoherence.

Second, the ‘wrongdoing thesis’ purports to be a rule of restitution.

However, the logic of proprietary restitution does not square with how fiduciary obligations are traditionally conceived – not as obligations the breach of which create secondary obligations to have a gain transferred and for which a ‘basis’ of restitution is necessary. True, the ‘no conflict’ and ‘no profit’ rules are indeed proscriptive: prohibiting illicit receipts and conflicting conduct.

But they are also primarily enforceable, as is characteristic of equitable obligations which deal neither with gains nor losses: i.e. neither with restitution nor compensation. They do not fashion responses to ‘wrongdoing’. Thus, to proclaim that a rule governing bribes, unlike other fiduciary obligations, deals with wrongdoing and deals with restoring transfers of gains, is to perform conceptual innovation and to create an anomalous product that does not fit the existing taxonomical schema.

5.2 THE ‘ARGUMENT FROM PEDIGREE’ It is undeniable that the ‘disability thesis’ is directly supported by a series of cases dating back to the 19th century cases.115 However, the point must be pushed further than that: these very same cases, in establishing the ‘disability thesis’, necessarily negative the ‘wrongdoing thesis’. They all involve this paradigm: (1) there is a receipt of an asset in breach; (2) the court simply holds without any explanation or ado that said asset is held on constructive 111 Millett, (n.39), Houghton, (n.30).

112 Conaglen, (n.106) 113 James Edelman, ‘When do fiduciary duties arise?’, (2010) 126 LQR 655-658 114 Cf. Conaglen, (n.19), 492.

115 Diplock v. Blackburn (n.115); Fawcett v. Whitehouse; Sugden v.

Crossland; Williams v. Barton. Onencould add Keech v. Sandford and Massie v.

Watts (US Supreme Court)).

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trust, exemplified by Lord Ellenborough’s pronouncement in Diplock v. Blackburn,116 where a master of a ship pocketed a premium from a bill drawn in England: “…[T]his premium belonged to the owner [of the ship]… If a contrary usage has prevailed, it has been a usage of fraud and plunder. What pretence can there be for an agent to make a profit by a bill upon his principal? This would be to give the agent an interest against his duty.”117 Notice that the focus was whether the premium received could ‘belong’ to the fiduciary in spite of his existing obligation, or instead, by virtue of those obligations, ‘belonged’ to the principal instead. Lord Millett describes the occurrence as “the no-conflict rule trumping the law of property”.118 What is meant is that the fiduciary obligation of loyalty, from which the ‘no conflict’ and ‘no profit’ rules derive, acts ex ante the receipt of the profit or asset in question to deem it as ‘belonging to the owner’ in Equity.

Thus, in Re Smith, another case of bribe-taking, Kekewich J did not speak in the language of disgorgement for wrongs ex post, but that: “… The Court in cases of this kind does not proceed on the basis of punishment, but treats the trustee as having received such a bribe not on his own behalf, but on behalf of and as agent for the trust estate... The Court fastens on the transaction at the moment when it is done”119 The idea that the property is received on the basis that it ‘belongs’ not in Equity to the fiduciary, but to his principal, explains Lord King LC’s remarks in Keech v. Sandford,120 that “… the trustee is the only person of all mankind who might not have the lease”.

Similarly, in the case of Massie v. Watts121 before the US Supreme Court, which involved a fiduciary employed to survey and purchase land for his principal proceeding to do so instead for himself, it was observed that “[the fiduciary] cannot hold the land under an entry for himself otherwise than as trustee for his principal”. This repeated invocation of the ‘cannot hold’ motif is striking: Professor Story, writing in the 1830s, is almost casual in his ‘general statement’ of the phenomenon:122 “On the whole, the doctrine may be generally stated, that… [a fiduciary] will not be permitted to hold any such advantage” As a matter of doctrinal pedigree, then, it is well established that all assets acquired in breach of fiduciary duty are automatically ‘belong’ to his principal by operation of a fiduciary ‘disability’.

This is later seen in cases such as Regal Hastings and Boardman, proving that the rule has not been lost in antiquity. The ‘wrongdoing thesis’, conversely, is a modern innovation which cannot share in the same pedigree, and must purport to justify itself independently from the ‘disability thesis’.

Therefore, it is not enough to say, as in FHR, that the broad remedial principle (and thus the ‘disability thesis’) has a longstanding basis in precedent. It must be further recognised that the Argument from Pedigree serves to detach the ‘disability 116 (1811) 170 E.R. 1300.

117 Cited in Millett, (n.39), 604 118 Id. 119 Re Smith; Smith v. Thompson [1896] 1 Ch. 71, 77 120 [1726] EWHC Ch J76(1726) 2 Eq Cas Abr 741; 25 ER 223 121 Massie v. Watts, 10 U.S. 6 Cranch 148 148 (1810) 122 Joseph Story, Commentaries on Equity Jurisprudence As Administered in England and America (London: CC Little & James Brown, Reprinted Ed. 1846), Vol I., 136-137

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thesis’ from the ‘wrongdoing thesis’, and in so doing, proves how tenuous the latter is.

5.3 THE ‘ARGUMENT FROM ELIMINATION’ While the ‘disability thesis’ has been various criticised in the literature, I suggest that a great deal of it stems from a misconception of what the ‘disability’ actually entails. In particular, the criticisms made on the basis of restitutionary principle refute the ‘wrongdoing thesis’ instead. By elimination, therefore, the ‘disability thesis’ is to be preferred over the ‘wrongdoing thesis’ for being able to refute the criticisms levelled against the result in FHR. 5.3.1. CRITICISM #1 - THE ‘DISABILITY THESIS’ INVOLVES ‘FICTIONS’ First, it has been objected that the disability thesis involves, for worse, the use of fictions.123 Accordingly, it artificially assumes that the fiduciary will be treated as having acted in accordance with his fiduciary obligations – as not having received a bribe for himself but for his principal – when he has in fact committed “… an evil practice which threatens the foundations of any civilised society”.124 These fictions, unlike useful fictions, are said to be unjustified because it prejudices third parties without good justification.125 However, I respond that this objection is based on a misconception regarding the ‘disability’ which the thesis identifies.

The ‘disability’ does not treat a fiduciary as if he had not committed a breach at all, nor does it preclude him from pleading the (irrelevant) fact that he intended to benefit himself.

It does not ‘pretend’ that the “defendant has performed his obligation to hand over the bribe in specie”:126 in fact, a fiduciary does not actually owe an obligation to hand the bribe over ante the creation of the constructive trust. What Equity does instead is to formulate a rule that precludes the fiduciary from acquiring beneficial ownership over an asset if he acts in a manner inconsistent with his fiduciary obligations not to receive it. This is an imposition of, effectively, an incapacity upon the fiduciary from owning that which has been illicitly received, and a correlative entitlement upon the principal. In this regard, the observation in Guy Neale “… that a principal is entitled to all the benefits acquired by a fiduciary in the course of the fiduciary acting in breach of the duties which he owes to his principal” squarely describes the corollary ‘disability’ – though, with respect, without recognising it.127 Therefore, the disability thesis properly understood is not fictional, but just an equitable rule reflecting how fiduciary obligations work. It does not deal with counterfactual hypotheses, but with equitable-proprietary implications.

Admittedly, there is a risk that the traditional metaphors distort a proper understanding of how the rule works. In this regard, I suggest that we should not speak of Equity treating a fiduciary as a ‘good man’ or as doing ‘that which ought to be done’,128 123 See, inter alia, William Swadling, ‘Constructive trusts and breach of fiduciary duty’, (2012) 18(10) Trusts & Trustees 985-999; James Penner, (n.

10); 1000; Chambers, (n.42); Worthington, (n.103); Re Macks (2000) 204 CLR 158, cited by James Edelman, ‘Two fundamental questions for the law of trusts’, (2013) 129 LQR 66-86, at 82 124 Reid, (n.11), 330 125 Chambers, (n.42), 249-250.

126 Swadling, (n.42).

127 Guy Neale, [130].

128 Contra Peter Millett, ‘Bribes and Secret Commissions’ (1993) 1 RLR

but the plainer idea that fiduciary obligations are themselves inherently creative of a rule that these receipts vest in favour of the principal.129 Far from being fictional, this incapacity is real: a fiduciary is “not permitted to do wrong” in the sense that he cannot even hold the beneficial interest in unauthorised receipts.130 An analogy may be drawn with that of a mischievous dog digging up a bone by its own volition. Fido might have that bone in his jaws, but we cannot say that Fido has physical ownership (i.e. possession)131 of the bone, because it has no legal capacity to possess things. Rather, it is Fido’s master who has possession of that which his dog has found. Comparably, a fiduciary is incapable of beneficially owning illicit receipts, and it a fiduciary’s principal who beneficially owns that which a fiduciary has pocketed. Whether or not this is a normatively justified rule is a different question altogether. The point is that, conceptually speaking, the ‘disability’ is legally significant and cannot be impugned on grounds of being “fictional”.

5.3.2. CRITICISM #2 - ABSENCE OF A PRIOR ‘PROPRIETARY BASE’ Professors Birks132 and Goode,133 inter alios,134 have questioned the conceptual soundness of imposing a “proprietary restitutionary remedy” when a fiduciary receives bribes. These objections have not been rebutted by either Reid or FHR. Summarily, they argue that, in order for a bribe (or any other asset) to be the subject of a constructive trust as a “proprietary restitutionary remedy”, there has to be some nexus or between that asset gained and the principal that explains why the restitution sought to be effected takes the shape of a proprietary right accruing to the latter.135 The nexus must, accordingly, be more than an impermissible conflict of interest or by saying that the fiduciary is “treated as having done his duty”, since that only describes the relevant ‘wrong’ and not the ‘reason’ for the remedy’s proprietary character.136 It is the existence of this “proprietary base” which supplies the crucial justification why the principal ought to be given a proprietary remedy and not merely why an errant fiduciary ought to be disgorged of the bribes he has received.137 This argument coherently rebuts the ‘wrongdoing thesis’: since there is no prior “proprietary base” for restitution, so the argument goes, there needs to be ample justification found elsewhere for a proprietary remedy.138 Absent a basis for restitution, one necessarily turns to make pure arguments of policy. In the same regard, it would then convincingly be objected that a “proprietary restitutionary remedy”: (1) Occasions unfairness to creditors who have done no wrong – who are disfavoured for a principal “… whose claim has no initial proprietary base, who has given no value, who has suffered no loss and who has

129 Compare Smith, (n.44), 628, and Houghton, (n.30), 1002-1003, who make similar arguments.

130 See Smith, (n.44), 628 131 See Joseph Bingham, ‘The Nature and Importance of Legal Possession’, (1915) 7(8) Michigan Law Review 535 132 An Introduction to the Law of Restitution, (Oxford: OUP, Revised Ed. 1989), 386-399 133 Roy Goode, “Ownership and Obligation in Commercial Transactions” (1987) 103 LQR 433; “Proprietary Restitutionary Claims” in Restitution: Past, Present and Future (1998) eds William Cornish, Richard Nolan, Janet O’Sullivan and Graham Virgo, Chapter 5 134 See e.g. Edelman, (n.125); Graham Virgo, ‘Profits Obtained in Breach of Fiduciary Duty: Personal or Proprietary Claim?’ (2011) 70 CLJ 502 135 See Lord Neuberger MR’s summary in Sinclair (n.17), [81].

136 Chambers, (n.45), 249-250 137 Paul Miller, “Justifying Fiduciary Remedies” (2013) 63 U.T.L.J. 570, 609: 138 Roy Goode, ‘Proprietary liability for secret profits - a reply’, (2011) 127 LQR 493-495

no reliance interest to protect”.139 (2) Occasions unfairness to third parties, such as subsequent equitable chargees who have had no knowledge of the bribe and may have relied on their ostensible security.

(3) Suffers from providing little added deterrence to the specific ‘wrongdoing’ that is bribe taking, if at all, and hence constitutes an objectionable form of “proprietary overkill”. 140 Nevertheless, this is an argument that can only be made against a restitutionary account of the result in Reid and FHR. The disability thesis completely obviates it, as with the need to supply that added justification for proprietary restitution in lieu of a’ proprietary base’ – because the disability thesis does not purport to be restitution for wrongs in the first place. Restitution is not needed because fiduciary obligations in themselves are “perfectly capable of creating and giving effect to rights which are proprietary in nature”.141 All the arguments from Birksian restitutionary principle, therefore, would be relevant only if the rule in FHR, already in existence and invoked repeatedly in the 19th century, operated on restitutionary logic. Being so, they promptly vanish if one adopts the “disability thesis”.

5.3.3. CRITICISM #3 - BREACHES OF FIDUCIARY DUTY CAN ONLY BE ‘WRONGS’ Critics like Swadling142 and Penner143 argue that the term ‘disability’ is disingenuous because one cannot call other wrongdoers, such as a dishonest assister, or a motorist who causes a road accident, ‘disabled’ from causing the harm or losses as he did.144 The truth, according to Swadling, is that a fiduciary is made to disgorge his receipts because they were made wrongfully, and especially wrongfully – being the same species of wrongs like negligence or breach of confidence, and fundamentally unlike an “obligation to account” incumbent on a genuine trustee.145 However, the objection, with respect, is problematic on two counts.

First, it wholly ignores the distinct ontology of fiduciary obligations, which are distinguishable from obligations to render compensation for the breach of a primary obligation. The analogy with dishonest assistance or the commission of a tort is wholly inapt because a dishonest assistant or a tortfeasor does not owe the same obligations that a fiduciary undertakes, which create a fiduciary’s “incapacity” to hold the beneficial interest in bribes.146 In other words, the creation of remedial rights147 accruing to a victim of a tort evidently are not incidents of a tortfeasor having assumed a fiduciary obligation prior, but of 139 Goode, ibid., 495; cf.: Vanessa Finch and Sarah Worthington, ‘The Pari Passu Principle and Ranking Restitutionary Rights’ in Francis Rose (ed.), Restitution and Insolvency (Oxford: Mansfield Press 2000) 1, 13–14, arguing that the principal should be ranked sub passu instead 140 Penner (n. 19), Swadling (n.42). See also Tsun Hang Tey, Fiduciaries, third parties and remedies - Singapore’s perspectives and contribution, (2010) 24(4) Trust Law International 234-251, 244-245 141 Millett, (n.47) 142 Swadling, (n.42) 143 Penner, (n.19) 144 Swadling, (n.42), 988. For a comparison of Swadling’s position with orthodoxy, see Etherton, (n.4), 71 145 Ibid., 988-989.

146 These obligations must be fiduciary in nature.

147 In sense (ii) of Professor Birks’ classification: see Peter Birks, ‘Rights, Wrongs, and Remedies’, (2000) 20(1) OJLS 1-37, 12-14

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the tortfeasor having conducted himself in breach of primary obligations not to commit the tort in question. It follows that the fiduciary obligations which create the ‘disability’ fundamentally differ from an obligation to render compensation for causing losses to the principal.148 That a fiduciary’s disability does not in itself create a secondary obligation to render compensation or even to transfer the asset over to the principal is apparent: for if it did, there would then exist, arguendo, scope for a legal causation doctrine or a ‘duty’ to mitigate – which orthodoxy unequivocally disproves.149 This is because the asset already has vested ex ante not in the fiduciary but the principal, which explains the plenary nature of the fiduciary’s liability: a court would not be ordering disgorgement of the asset in vindication of a secondary right, but to declare that an institutional constructive trust – a true trust150 – has arisen as a consequence of the “disability”. Thus, the two kinds of obligation should be carefully secerned, and not casually conflated in the way the aforementioned objection does.

Second, the objection involves an erroneous comparison with a trustee’s ‘obligation to account’, which is a completely different kind of construct altogether from what we would identify to be fiduciary obligations. A trustee or fiduciary’s obligation ‘to account’ and to hand property received in specie, qua custodian, has nothing to do with the fiduciary obligations that create the ‘disability’. That argument confuses a person being held to ‘account in Equity’ (previously, “accountable as a constructive trustee”)151 with the creation of an actual constructive trust.152 While it is true that a trustee’s obligation “to account” is a fundamental constituent of the phenomenon of trusteeship,153 the existence of custodial obligations has no significance whatsoever for the existence of a fiduciary’s “disability” – which extends not only to his dealings with the property in his custody but all of his deeds qua fiduciary. Reid, for example, managed no assets, but he was a fiduciary and subject to the self-same obligation of loyalty and the ‘no profit’ and ‘no conflict’ rules.

That was enough to bring about the institutional consequences attending a fiduciary’s receipt of a bribe: he is precluded from acquiring the beneficial interest in it. Boardman, as with the board members in Regal Hastings v. Gulliver, too, did not deal with his principal’s assets, and thus could not have been held ‘to account’ in the same way that a director embezzling corporate monies would – but a constructive trust was withal imposed.

That a constructive trust would arise when he does, owes not to his custodial obligations but his fiduciary obligations (sc. the ‘no profit’ and ‘no conflict’ rules) instead, which ‘subsidiarily’ secure154 not only the performance of his custodial obligations but everything else he does as director. Short of the argument that the constructive trust is exclusively restitutionary and thus requires a ‘proprietary base’, the phenomenon has nothing at all to do with the fact that the fiduciary is also a steward of property.155 An ‘obligation to account’, thus, is not a requirement 148 Re Smith [1896] 1 Ch. 71 explicitly marks this distinction.

149 Murad v. Al-Saraj [2005] EWCA Civ 959. Quaere, however, whether the Target Holdings v. Redferns [1995] UKHL 10, [1995] 3 All ER 785, [1996] 1 AC 421 line of reasoning (see now AIB Group v. Mark Redler [2014] UKSC 58) has, or would subsequently, erode this proposition.

150 Cf. Lord Sumption in Williams v. Central Bank of Nigeria [2014] UKSC 10, [9] – [11]; see also Millett, (n.39), 593 151 Ibid., [9]-[10].

152 See Millett (n.39), 593 153 I.e. to administer the assets in custody in accordance with the terms of his trust, or his office; and for which an account can be taken as to the state of the assets: McGhee, (n.9), 30-001. Libertarian Investments v. Hall [2013] HKCFA 93 at [166] et seq (per Lord Millett NPJ). See also Lionel Smith, “Fusion and Tradition” in S. Degeling and J. Edelman (eds.), (n.45), 34 154 Conaglen, (n.106) 155 The restitutionary theorist’s rebuttal would be that these constructive trusts are explicable by virtue of the existence of some other ‘proprietary base’ present on the facts. With respect, such a proposition is falsified by the cases where clearly no prior ‘proprietary base’ is discernible.

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for the imposition of proprietary liability.

5.3.4 CRITICISM #4 - THE ‘DISABILITY THESIS’ IS AN ANTIQUATED CONSTRUCT INAPT FOR MODERN USE This objection, insofar as it seeks to undermine the normativity of the disability thesis while accepting its provenance, is of considerable force, but remains ultimately surmountable.

Andrew Hicks has argued that the broad remedial rule, while based upon the ‘disability thesis’, was not a product of rigorous analysis, but a peremptory extrapolation by 19th century treatise writers like Lewin and Story, which was then conveniently adopted by Chancery judges.156 Hicks further argues that the principle’s justifications are less relevant today, since (1) the preferable mode of discourse has been plurality and sophistication over the ‘doctrinal simplicity’ of broad remedial principles;157 (2) invariably imposing a constructive trust may prove commercially embarrassing;158 (3) a broad remedial rule would now have implications for third parties and innocent creditors upon insolvency - which were not originally considered when the principle took shape;159 and (4) restitutionary doctrine may prove to be a better, even if ahistorical, conceptual foundation allowing for sharper analysis and calibration of proprietary remedies for breach of fiduciary duty.160 However, I argue that these reasons, while not lacking persuasiveness, ultimately fail to accord sufficient weight to the fact that the ‘disability thesis’ is (1) well-established in precedent; (2) analytically coherent; and (3) thereby promotive of legal certainty. This counters the objection that the ‘disability thesis’ may have lost some of its erstwhile justification.161 Chiefly, the disability thesis is not an innovation akin to what the restitution theorists would proffer as an alternative.162 Restitutionary accounts of equitable doctrine are unlikely to be, for better or worse, purely descriptive of doctrine, 163 but invariably charged with their own prescriptive agenda:164 as to enable a reinterpretation of past cases as to be promotive of other ends, such as commerce and insolvency policy.165 Such may be desirable in certain contexts, but it fails in the present for being incoherent in its account of fiduciary liability, as is clearly evinced by the various suggestions of what the correct Sinclair-esque categorisation of the conditions for proprietary liability should be.166 Conversely, the ‘disability thesis’ confers upon the entire system a doctrinal elegance which restitutionbased rationalisation cannot provide: linking the broad remedial principle to the ‘obligation’ of loyalty and the two proscriptive rules, their breadth, and their ‘remedial’ consequences for 156 Hicks, (n.21), cited in Sinclair (n.17), [58] and [81].

157 Hicks, ibid., at 315, 318-319 158 Ibid., at 317 159 Ibid., at 317-318. Compare Swadling, 992-993.

160 Ibid., at 318-319.

161 Doctrinal rules, as with equitable doctrine, are made for utility and the achievement of normatively desirable outcomes, but this does not confer us licence simply to pursue utility at the expense of analytical coherence. Cf. Benjamin N Cardozo, ‘The Nature of the Judicial Process, Lecture 1’ 1 Journal of Law (1 Chapter One) 329, 340 162 Hicks, (n. 21), 317-318. Cf., Thahir (HC), (n.12), [241] 163 See Carmine Conte, From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law, (2014) OJLS 1-30, at 14-18. Cf. Birks, (n.134), 19-24 164 The degree of revisionism, of course, turns on the approach of the particular theorist in question.

165 As Justice Gummow would laconically say, “… it does not get the past right”. WMC Gummow, “Unjust Enrichment, Restitution and Proprietary Remedies” in Paul Finn (ed.) Essays on Restitution (Law Book Co, Sydney.

1990) 60-67.

166 Sinclair (n.17), at [88]. See the alternative formulations, inter alia, Goode, (n.x), 69. Worthington, (n.x) both cited and criticised in FHR at [10], [31].

breach – all equally strict and creative of proprietary liability.167 The fact of their integration and their coherence, I submit, is not unseated by pointing to the scantiness of reasoning in the old cases and the supposed arbitrariness of treatise writers’ interpretations of the same.

Admittedly, the consequentialist policy objections to the rule – chiefly the potential prejudice occasioned to a fiduciary’s unsecured creditors – are not without force, as the Supreme Court in FHR itself admits.168 However, any attempt at mitigating the intransigency of the consequences of a breach of fiduciary duty must in turn involve a corresponding attenuation of the nature of fiduciary obligations themselves, which are uncompromising in every other respect.169 In other words, when we reject the applicability of the ‘disability thesis’, even if only for bribes, we would necessarily be changing what it means to owe fiduciary obligations and thus to be a fiduciary. Indeed, were a different rule applicable as respects an errant fiduciary’s receipt of bribes and secret commissions, one would implicitly be making the claim that a fiduciary is somehow not disabled from owning bribes received in Equity, but is on the other hand disabled as concerns unauthorised profits or assets, not being bribes, received. Such presupposes, then, some normative reason capable of being given conceptual form170 – and a very good reason, indeed – as to why fiduciary obligations ought not to impose a disability where it comes to bribes. The ‘why Boardman but not Reid’ argument then emerges,171 and demonstrates the systemic incoherence of the outcome.

The foregoing discussion cannot purport to be a full defence of the ‘disability thesis’. However, it illustrates that, if Guy Neale’s interpretation of FHR as having favoured the broad remedial rule and the ‘disability thesis’ were to be maintained, courts, whether English or Singaporean, would have to confront its criticisms as this article does. In that respect, one must winnow out those criticisms which are pertinently only to a restitution-for-wrongs understanding of the Reid trust (which the ‘disability thesis’ circumvents) and those which are premised on a misreading of the disability thesis and its metaphors. It must also be heeded that, as mentioned at the beginning, the quest is not to maintain the illusion of formal simplicity that a rule possesses, but instead for it to be justified in concept and rationale.

I have argued hitherto that the ‘disability thesis’ is the superior thesis and ought to be preferred. Yet, it must also be remembered that what the disability thesis has in “fit”, it lacks withal in terms of a fully developed and articulated normative justification. In that regard, it is hoped that the Singaporean courts would be equal to the task of salvaging simplicity.

Either way, the ‘wrongdoing thesis’ delivers an unsatisfactory result. Were it or any form of restitutionary reasoning adopted as an explanation of FHR, a wholesale revision of fiduciary law would be needed: a reinterpretation of fiduciary doctrine, as cases such as Boardman,172 to fit within a restitutionary remedial framework and as to be capable of explaining the absence of a prior ‘proprietary base’ or a good reason in lieu. If FHR were instead repudiated on the basis of restitutionary reasoning, one would then be pressed to explain why only the ‘receipt of bribes’ enclave of fiduciary law should founded on restitutionary reasoning and why the ‘no profit’ or ‘no conflict’ rules do not operate in the same way. Both possibilities, it is submitted, are conceptually invidious and, even if the conceptual hurdle is surmounted, do not lend themselves to the formulation of a practically applicable rule. Ultimately, therefore, it is suggested that the best answer is that the ‘wrongdoing thesis’ is just untenable, and ought to be discarded for good.

6. CONCLUSIONS It is essential to any development of the law post-FHR that the aforesaid doctrinal impasse between to two theses must be confronted by the Singaporean courts, lest the analytical deficiencies of FHR be replicated. The sort of tentative reasoning in FHR, with respect, detracts from the legitimacy of FHR’s result insofar as it leaves it unexplained. Singaporean law must choose between the mutually incompatible propositions in Thahir, Reid, and FHR. This is not, at its foundations, a choice only of policy, but a choice which requires the consultation of first equitable principles, and the assumption of a clear conceptual position to an unstinting, fully-reasoned exclusion of others.

167 See Conaglen, (n.19), 491; Etherton, at 82-83; Hicks, at (n.21), 313 , who Etherton (n.4) points out as making this very concession.

168 FHR, (n.5), [43] - [44] 169 See Conaglen, (n.19); (n.106) 170 Cf. Etherton, (n.4), 82-83 171 Cf. FHR, (n.5), at [41] 172 Boardman v. Phipps [1967] 2 A.C. 46 HL; [1965] Ch. 992 (CA); [1964] 1 W.L.R. 993 (HC). See Andrew Hicks, ‘Proprietary relief and the order in Boardman v. Phipps’, (2013) 3 Conv. 232-241.

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A Tale of Bribes from Singapore to Hong Kong to England: A Proprietary Overkill

By Tan Wei Ming INTRODUCTION This article is concerned with court ordered responses to gains made by fiduciaries, an issue that was very recently examined by both the Singapore Court of Appeal in Guy Neale v. Nine Squares Pty Ltd1 and the English Supreme Court in FHR European Ventures LLP v. Cedar Capital Partners LLC.2 The controversy arises when a wrongdoer fiduciary takes a bribe. While I do not doubt that such a fiduciary must account for the value of the bribe, and any subsequent gains induced by the bribe, it is to my mind incorrect to assert that the bribe was held for the principal on trust from the moment of receipt.

Before I proceed, it should be noted that the current law in Singapore, Hong Kong and England and Wales takes the position that a constructive trust does indeed arise at the moment of receipt, thus the bribe and its subsequent proceeds can still be traced even in the event of the defendant fiduciary’s insolvency.

My argument therefore takes the unorthodox route but it is hoped that future courts would pause and reconsider this issue afresh.

At the outset, I will argue that a fiduciary that takes a bribe does not hold that bribe on trust at the moment of receipt. The principal is limited to a personal claim, either to seek an account of profits or an order for specific performance, forcing the defendant to hand over his gains in specie. The position of Lister v. Stubbs3 and Sinclair Investments (UK) Ltd v. Versailles Trade Finance Ltd ought to be vindicated.4 THE CASE LAW JURISPRUDENCE FOR BRIBES AND SECRET COMMISSIONS In Singapore, this question on bribes first arose in Sumitomo Bank Ltd v. Kartika Ratna Thahir.5 Lai Kew Chai J held that an institutional constructive trust arose at the moment when the fiduciary received the bribe.6 The bribe therefore ‘belongs’ to the principal there and then. Lai J reasoned that ‘a court in Singapore when exercising its equitable jurisdiction must reflect the mores and sense of justice of the society which it serves’.7 Call this the ‘wrongdoing thesis’. Furthermore, Lai J was unconvinced that a honest fiduciary in breach of the no-profit rule (like the defendants in Boardman v. Phipps8) was said to be a constructive trustee while a dishonest fiduciary is only personally liable for the bribe.9 The decision of Lai J was affirmed upon appeal.10 Twenty years down the road, the Court of Appeal in Guy Neale v.

Nine Squares Pty Ltd reiterated that a constructive trust arose in respect of bribes taken by a fiduciary.

The Privy Council was sufficiently impressed by Lai J’s arguments in Sumitomo Bank and chose to adopt a similar position. Lord Templeman, delivering the decision of the Privy Council in Attorney‐General for Hong Kong v. Reid, described bribery as ‘an 1 [2014] SGCA 64 2 [2014] UKSC 45 3 (1890) 45 Ch.D 1 4 [2011] EWCA Civ 347 5 [1992] SGHC 301 6 Ibid, [241]-[243] 7 Ibid, [241] 8 [1966] UKHL 2 9 [1992] SGHC 301, [241] 10 Thahir Kartika Ratna v. PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina) [1994] SGCA 105

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evil practice which threatens the foundations of any civilised society’.11 His Lordship advanced the ‘wrongdoing thesis’ by arguing that ‘the false fiduciary will receive a benefit from his breach of duty unless he is accountable not only for the original amount or value of the bribe but also for the increased value of the property representing the bribe. As soon as the bribe was received, it should have been paid or transferred instanter to the person who suffered from the breach. Equity considers as done that which ought to be done.12 More recently, the UK Supreme Court in FHR European Ventures LLP v. Cedar Capital Partners LLC affirmed this equitable rule would apply to all benefits received by an agent in breach of his fiduciary duty, including bribes and secret commissions.

Writing extra-judicially, Sir Peter Millett (as he then was) argued for a proprietary remedy in respect of bribes as well.13 However, he does not seem to endorse the ‘wrongdoing thesis’ as illustrated above. For him, such cases do not ‘belong in the law of wrongs at all’.14 Millett argues that ‘Equity insists on treating him as a good man, despite all evidence to the contrary; it will not allow him to say that he is a bad one’.15 This is the so-called ‘good man’ doctrine of equity where all fiduciaries are ‘disabled’ from breaching their duties. Call this the ‘disability thesis’.

On the other hand, in Lister v. Stubbs, the English Court of Appeal held that though the defaulting agent could be ordered at trial to pay over to his principal the amount of the bribe he received, and could even be ordered to transfer the bribe or its substitute in specie, no trust arises at the moment of receipt.

This was also the case in the decision of the Court of Appeal Metropolitan Bank v. Heiron.16 In Sinclair Investments (UK) Ltd v.

Versailles Trade Finance Ltd, the Court of Appeal disagreed with the approach taken in Reid and held that in respect of bribes, only a personal claim arises. Lord Neuberger MR (as he then was) distinguished three categories in which a fiduciary obtains a benefit in breach of fiduciary duty: (1) where the benefit is or was an asset belonging beneficially to the principal, (2) where the benefit has been obtained by the fiduciary by taking an advantage of an opportunity which was properly that of the principal, (3) and all other cases.17 In his Lordship’s analysis, only categories 1 and 2 trigger a proprietary remedy. Category 3, to which bribes and secret commissions belong, only triggers a personal claim. However, in a single stroke of the judgment in FHR v. Cedar, Lister, Heiron and Sinclair are now considered overruled. Nevertheless, I shall argue that there is no immediate trust at the moment of receipt of those bribes.

REJECTING THE ‘WRONGDOING THESIS’ The argument that bribery is an evil practice and goes against the mores and justice of society should not and cannot be a foundational ground in which the institutional constructive trust is based on. As my learned friend, Myron Phua, has spent considerable effort in rebutting the ‘wrongdoing thesis’, I need not venture down that route again. Instead I will highlight a patent inconsistency in this policy driven argument. If a constructive trust is imposed over bribes taken by fiduciaries on the basis that bribery is a heinous crime, why should a bribe taken by a fiduciary be more ‘evil’ than a bribe taken by a nonfiduciary?

11 12 13 14 15 16 17

[1994] AC 324, 330 Ibid, 331 Sir P. Millett, ‘Bribes and Secret Commissions’ [1993] RLR 7 Ibid, 20 Ibid, 20 (1880) 5 Ex D 319 [2011] EWCA Civ 347, [88]-[89]

Suppose Bob is a cashier working in McDonald’s. He takes a bribe of $300 from a customer so that the customer need not queue overnight for the Hello Kitty soft toys and is able to collect the toys at a time of his convenience. McDonald’s becomes aware of this bribe and sues Bob. McDonald’s is necessarily limited to a personal claim in respect of the $300. Should Bob becomes bankrupt, McDonald’s is unable to assert that the bribe was theirs right from the start. The result in relying on the ‘wrongdoing thesis’ to ground a constructive trust for bribes reveals an uncomfortable and arbitrary distinction between bribes taken by a fiduciary and a non-fiduciary like Bob. If the policy argument against bribery is to be effective, it must be consistent and of general application. Bribery is indeed an evil practice but this distinction is untenable. The ‘wrongdoing thesis’ therefore cannot adequately justify the imposition of a trust over the bribes.

THE CASE FOR A PERSONAL CLAIM I will now make the case for the vindication of Sinclair and also address the various objections against it. It is perhaps most unfortunate and lamentable that the language used for gainbased awards against fiduciaries is that of a ‘liability to account as a constructive trustee’. This phrase is most misleading. In Selangor United Rubber Estates v. Craddock (No. 3), UngoedThomas J held that this phrase is ‘nothing more than a formula for equitable relief. The court of equity says that the defendant shall be liable in equity, as though he were a trustee’.18 Lord Millett is also cognisant of this confusing label. In Dubai Aluminium Co Ltd v. Salaam, his Lordship conceded that ‘this type of constructive trust is merely the creation by the court…to meet the wrongdoing alleged: There is no real trust and usually no chance of a proprietary remedy. I think we should now discard the words “accountable as constructive trustee” in this context and substitute the words “accountable in equity”’.19 Therefore, the courts are not saying in this context that a fiduciary/trustee holds rights on the beneficiaries’ behalf. Instead, he is only personally liable to pay a sum of money.

In Sumitomo Bank, Lai J analysed that the honest fiduciary in Boardman v. Phipps held the profits on trust. It is respectfully submitted that he has fallen into the labelling trap as described above. Upon careful reading of the Court of Appeal and House of Lords judgments in Boardman, there were no express endorsements that an immediate trust arose in respect of those profits. Instead, the courts merely assumed the findings of the trial judge, Wilberforce J. As Swadling noted, ‘no argument was directed to the nature of the response’.20 Indeed, since the defendant was not bankrupt, the point whether a trust arose or not was immaterial to the facts and it is understandable that the superior courts did not pay much attention to it. Even in the seminal case for the no-profit rule, Lord King LC in Keech v.

Sandford did not conclude that there was an immediate trust.21 This was acknowledged by Lord Templeman in Reid.22 What was in fact decreed in Keech v. Sandford was that the lease should be assigned to the infant, that the trustee be indemnified from any covenants comprised in the lease, and an account of profits made since the renewal. Therefore, it was incorrect to rely on the ‘wrongdoing thesis’ as well as using Boardman to illustrate the difference in treatment between an honest fiduciary and dishonest fiduciary. The immediate trust issue remains unsettled within Boardman.

18 [1968] 1 WLR 1555, 1582 19 [2003] 2 AC 366, 404 20 W. Swadling, ‘Constructive Trusts and Breach of Fiduciary Duty’ 18 Trust & Trustees 985, 994 21 (1726) Sel Cas t King 61, 62 22 [1994] 1 AC 324, 332

(I) ‘OBLIGATION’ TO ACCOUNT VERSUS ‘LIABILITY’ TO ACCOUNT There is a distinction between an ‘obligation’ to account and a ‘liability’ to account.23 The former can be classified as a primary duty of a fiduciary while the latter can be viewed as a secondary duty of a fiduciary. In Pearse v. Green, Plumer MR highlighted that it is the first duty of an accounting party, such as a trustee, to be constantly ready with his accounts.24 This is so because trustees hold rights on behalf of, and for the benefit, of their principals.

He is a steward over those rights and the order of falsification can easily be made against him should he misappropriate property in breach of his duty. Falsification is not so much a remedy at all.

It targets the primary obligation of a trustee.

The position of the Public Prosecutor and a company director is different. While both of their offices are fiduciaries, the content of their obligations are different from that of the trustee. As Frankfurter J in SEC v. Chenery Corp puts it, ‘to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary?’25 Therefore if one asks the man on the Clapham omnibus ‘what is the core obligation of the Public Prosecutor?’ The answer is very likely to be along the lines of ‘to prosecute and discharge his duties impartially without fear or favour’. The obligation such persons owe as fiduciaries is to avoid conflicts of interest, not to take care of property rights on behalf of their principals. They do not have any ‘obligation to account’ for they hold no rights on behalf of their principals. Only when a breach of obligation of loyalty occurs does a ‘liability to account’ arises. In such situations, the fiduciary is liable to account for his profits.

It is however important to note that I am not contending that a company director, by mere virtue of the fact that he is not a trustee, can never have a proprietary remedy ordered against him. Suppose Carol is the managing director of ABC Ltd. She is responsible for the management of the company as well as its funds. Although Carol is not strictly speaking a trustee of those funds, she is a fiduciary vis-à-vis ABC Ltd. To the extent that she owes fiduciary obligations to the company’s assets, any misapplication of these assets merits a proprietary claim. In Paragon Finance plc v. D B Thakerar & Co, Millett LJ reasoned that ‘the director’s possession of the asset is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust’.26 However, if Carol takes a bribe from David who is a client from the company, the consequence ought to be different. The enrichment that the dishonest fiduciary comes from a third party, not from the company’s assets, and is therefore not amenable to an unjust enrichment analysis, there being no enrichment of the defendant at the company’s expense. By misappropriating the company’s funds, a trust bites on the funds as it is a Category 1 situation envisaged by Sinclair. Carol has enriched herself by depriving ABC Ltd of an asset. As for the bribe from David, the company is unable to establish an equitable proprietary base in respect of that bribe. Tracing belongs to the realm of evidence and since the bribe money patently came from David and now given to Carol, ABC Ltd has no way of asserting ownership of that money. Therefore, the bribe could not have been clothed by a constructive trust to start with since ABC Ltd has no way to identify an equitable interest in the bribe. The bribe context 23 24 25 26

Swadling (n 20), 986 (1819) 1 Jac & W 135, 140 318 US 80 (1943), 85-86 [1999] 1 All ER 400, 409

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is analogous to that of dishonest assistance. When a third party induces a fiduciary to breach his duty, he is personally liable as if he were a constructive trustee for any loss by the principal. Nevertheless, before his assistance, that third party does not have any obligation to account. As Swadling argues, ‘his “accountability” is generated only by his act of assistance and loss by the beneficiaries’.27 If so, then he comes under a secondary liability to account for the loss. In common law, one simply terms it as ‘liable for damages’. Likewise, in equity, one labels his liability as ‘accountable in equity’ (per Lord Millett in Salaam). No one doubts that the case of dishonest assistance leads to a personal claim. For the bribes context, like in dishonest assistance, the ‘liability to account’ arises because of the breach.

There is no inherent obligation to narrate the tale of one’s stewardship of any funds or property rights. Carol has indeed committed two breaches, but they are essentially of a different nature and order.28 (II) REJECTING REID Besides the ‘wrongdoing thesis’ which Lord Templeman has endorsed, his Lordship was also concerned that if the principal is only restricted to a personal claim the fiduciary may benefit from his wrongdoing. In addition, his Lordship also invoked the ‘doctrine of anticipation’ to bolster his reasoning.

However, Lord Templeman’s concern is unfounded. In Sinclair, Lord Neuberger held that the scale of equitable compensation could be sufficiently flexible to include any unauthorised profits.29 The Privy Council in Reid merely assumed that a personal claim could not reach secondary profits made by the bribe. Moreover, in cases like Keech v. Sandford and Lister v. Stubbs, the orders to pay the secondary profits were either made or said to be possible.

While a defendant fiduciary can be held ‘accountable in equity’, the phrasing itself is silent on how that sum is to be calculated.

As for the maxim that ‘equity looks on as done that which ought to be done’, it bites on the obligation to convey, not onto the liability to account/pay damages upon failure to do so.30 This doctrine of anticipation is derived from Walsh v. Lonsdale.31 Consider this scenario: Edward buys a freehold estate from Francis.

When Edward has paid the full contract price to Francis but the freehold has yet to be properly registered under Edward’s name, a constrictive trust bites on the freehold estate. This is meant to reflect the actual ownership of the land. Thus while Francis is technically still the legal owner according to the register, Edward is the true owner in equity’s eyes. This doctrine is therefore only triggered when there is an existing obligation, not liability. Since the obligation of a fiduciary is to avoid conflicts of interests, were this maxim to operate correctly, Carol, upon receiving the bribe from David, would come under an obligation to return the bribe to David since equity considers her obligation as done (i.e she has returned and has not herself taken the bribe). If that were the case, Carol would not even be liable to account for that bribe, let alone hold them on trust for ABC Ltd. The result here is therefore artificial. Indeed, it is on the issue of ‘artificiality’ that I now turn to the ‘disability thesis’.

(III) REJECTING THE ‘DISABILITY THESIS’ In Tito v. Waddell (No. 2), Megarry V-C argued that ‘what equity does is to subject trustees to particular disabilities in cases falling within the self-dealing and fair-dealing rules’.32 However, 27 28 29 30 31 32

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Swadling (n 20), 987 Ibid, 989 [2011] EWCA Civ 347, [53] Swadling (n 20), 991 (1882) 21 Ch D 9 [1977] Ch 106, 248-251

in Gwembe Valley Development Co Ltd v. Koshy (No. 3), Mummery LJ criticised this ‘disability’ view as an ‘unnecessary complication’.33 Nevertheless, Lord Millett maintained the view that ‘equity insists on treating the fiduciary as having obtained the bribe for his principal; he will not be allowed to say that he obtained it for himself ’.34 The Achilles’ heel of the disability thesis is that it invokes too great a fiction. The first level of the fiction involves making the claim that equity treats men as good. This implication leads to a second level of fiction, that a fiduciary is thereby disabled from committing breaches. The latter fiction is easier to counter.

Would an officious bystander conclude that a Carol is disabled from taking bribe from David? The answer is likely to be ‘no, Carol can do whatever she wants as a director but if she does commit a wrong, she is liable to account for her actions’. When accepting the bribe, Carol did not do so with the interests of ABC Ltd in mind nor did she do so to procure that bribe for ABC Ltd. On the contrary, it would be totally accurate to assert that when she took that bribe, she has undermined the interests of ABC Ltd. Swadling was openly hostile towards the ‘disability’ view, dismissing it as ‘a nonsense’.35 Indeed, just as it would be artificial to claim that a murderer is disabled from killing someone or that a doctor is disabled from performing a medically negligent act (or omission), it would be equally absurd to say that a fiduciary is disabled from taking a bribe.

The first level of fiction can also be proven to be false. The truth is that equity does not always insist that men are good. This fiction does not carry the force of social normativity. In Hutton v. Watling, Jenkins J held that where equity does order specific performance of a contract of sale, it does so because an award of damages is an inadequate remedy.36 There was nothing to suggest that such an order was awarded because the defendant is ‘good’. Furthermore, the lowest intermediate balance rule as established by Sargant J in Roscoe v. Winder in the law of tracing proves that men are not ‘good’ in equity.37 Thus, the maximum limit on any claim against a bank account is the lowest point that account reached between the paying in of the trust funds and the date of trial. In both cases, equity obviously does not insist that men are ‘good’. While Lord Millett described this doctrine as ‘akin to estoppel’, this hardly changes the fact it is a denial of the truth.38 It would thus be better to acknowledge that what is actually happening is that the fiduciary is not always good. He is capable of, and not disabled from, breaching his obligations and when he does so, he incurs a liability to account.

(IV) REJECTING THE ‘DOG THESIS’ My learned friend, Phua, has devised an elaborate theory of the dogged fiduciary to explain the proprietary remedy in respect of bribes. The thrust of his argument is that a fiduciary is not allowed to retain any unauthorised benefits obtained within the sphere of his fiduciary management. He likens a loyal fiduciary to man’s most loyal friend, the dog. However, while one admires his analogy, it is ultimately susceptible to error.

First, his ‘dog theory’ is not capable of explaining the SinclairCategory 3 type of cases, especially the bribe. Phua argues that when a dog finds a bone, that bone belongs to the owner beneficially since the dog has no capacity at law. What this theory explains is actually Sinclair-Category 1 type of cases. The 33 34 35 36 37 38

[2004] 1 BCLC 131, [108]-[109] Millett (n 13), 20 Swadling (n 20), 988 [1948] Ch 26, 36 [1915] 1 Ch 62 Swadling (n 20), 988

dog is the property of the owner. It belongs to the owner to begin with, thus, whatever the dog finds in turn belongs to the owner.

Suppose Carol misappropriates 1 million dollars from ABC Ltd’s funds and invests in Apple Inc shares. The shares are now worth 3 million dollars. That shares undoubtedly belongs to ABC Ltd. According to Phua’s analysis, Carol is the dog. However, Carol does not belong to ABC Ltd. To match Phua’s analogy, the misappropriated one million dollars is the dog. Whatever that one million dollar fetches goes to the pockets of ABC Ltd immediately. This is so because ABC Ltd owns the one million dollar just as how the owner owns the pet dog. Consequently, Phua has not attempted to vindicate the proprietary remedy for bribes at all.

Next, on a secondary note, the dog thesis suffers the same fate as the disability thesis. Both theories are unable to escape the fiction argument. When a dog finds a bone, is it disabled from taking the bone and by implication obtaining the bone for its master?

A resounding ‘no’ would once again be the reply. The dog went to great lengths to unearth the bone so that he can enjoy biting on it. It is manifestly for its own benefit. It is not disabled from digging a bone. Upon discovering the bone, it can play with it or hide it. However, if the owner, for whatever reasons, is insistent on having the bone, the owner can extract the bone from the dog’s possession and keep it just as how a fiduciary in turn faces a liability to account for the bribe.

(V) THE FATE OF THE DEFENDANT FIDUCIARY’S CREDITORS

not benefit from the wrongdoing’.42 Since the effect of what the claimant is seeking is to recover a windfall, given that no value was provided, he should be classified as a deferred creditor, paid only after all other unsecured creditors are satisfied in full.

CONCLUSION This article has attempted to illustrate the inadequacies of the ‘proprietary’ position in relation to bribes and secret commissions. The ‘wrongdoing thesis’ as propounded by the Singapore High Court in Sumitomo Bank and endorsed in Reid is weak and indefensible while the ‘disability thesis’ as advanced

by Lord Millett is plagued with logical fallacies. While Phua has tried to devise a ‘dog thesis’ of the fiduciary to explain why an immediate trust arises, his analogy is inaccurate and unconvincing. There should not be a (institutional) constructive trust that bites on the bribe upon receipt. To the extent that the remedial constructive trust is not recognised in Singapore and England, no constructive trust is necessary to recover the bribes and its subsequent proceeds. The principal should therefore be left with a personal claim. As Swadling notes ‘the only legitimate concern is with the reach of the personal liability to secondary profits and the focus should be on developing that remedy instead’.43 To my mind, a personal claim is adequate since it can order the defendant fiduciary to account for the bribe or to hand over the substitute property in specie. It is hoped that the courts of Singapore and the United Kingdom will one day reconsider their positions. To impose an immediate trust to combat the problem of disloyal fiduciaries taking bribes is proprietary overkill.

Finally, Lord Neuberger MR argued in Sinclair that should there be an immediate trust upon receipt of the bribe, it would compromise the position of the defendant’s creditors.39 Indeed, policy considerations in this case weigh in favour of the creditors’ interests. However, this argument is also grounded on a principled basis. It stems from the fact that the claimant principal is unable to establish an equitable interest in the bribe. As Goode observes ‘ if a [principal] with no preexisting proprietary base and no entitlement based on receipt of property for his account seeks to have his claim characterised as proprietary, that requires justification’.40 In the bribe context, the value of the bribe can be recovered in a personal claim and any transaction concluded pursuant to the bribe can be rescinded.

The real tension between the principal and the other creditors only arises where the fiduciary is declared bankrupt. If restricted to a personal claim, the principal will have to rank pari passu with all the other creditors. However, the insolvency position of the defendant is a risk that other creditors take as well. As Goode argues ‘these creditors are independent third parties with claims of their own based on value they have given. There is no reason why they should be subordinated to a claimant (principal) who has no existing proprietary interest, who has given no value, who may have suffered no loss, and who cannot even invoke a reliance interest’.41 In fact, commentators have gone further and argued that the principal should not even benefit from the pari passu principle and be ranked alongside the unsecured creditors. To these critics, the fact that the principal has given no value was of crucial importance. Finch and Worthington argue that ‘on both fairness and efficiency grounds, an argument can be made for disgorgement claims to be deferred. This would allow the defendant’s general creditors to recover as much as possible from the estate, but would still ensure that the defendant did 39 [2011] EWCA Civ 347, [83] 40 Sir R. Goode, ‘Proprietary Liability for Secret Profits - A Reply’ (2011) 127 LQR 493, 494 41 Ibid, 495 (emphasis my own)

42 V. Finch & S. Worthington, ‘The Pari Passu Principle and Ranking Restitutionary Rights’ in FD Rose (ed), Restitution and Insolvency (Oxford, Mansfield Press, 2000) 1, 13-14 43 Swadling (n 20), 999

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image: danashultz.com

AN IMPLIED DUTY OF GOOD FAITH

By Kwek Jia Hao This article explores the decision of Yam Seng, its application and impact on the development of good faith in the law of England and Wales vis-à-vis Singapore.

INTRODUCTION This article seeks to analyse the decision of Yam Seng Pte Ltd (a Company Registered in Singapore) v. International Trade Corporation Limited (“Yam Seng”)1 that has attracted attention in England and Wales. In that case, International Trade Corporation Limited (“ITC”) had granted to Yam Seng an exclusive distribution right for the sale of a product at duty-free outlets. However, it provided the same product to a different distributor for sale in the same market at a price that was lower than the duty-free price. Yam Seng terminated the contract.

Leggatt J held that it was entitled to do so as there was a breach of an express term in the contract. But there had also been a claim that ITC was in breach of an implied “good-faith” term. The judge accepted that English law did not recognise a requirement of good faith as a duty in implied by law into all commercial contracts. But he held:

“… the relevant background against which contracts are made includes not only matters of fact known to the parties but also shared values and norms of behaviour. Some of these are norms that command general social acceptance; others may be specific to a particular trade or commercial activity; others may be more specific still, arising from features of the particular contractual relationship…”3 Amongst the contractual relationships that he identified were contracts that involve a long term relationship between the parties and to which they make a substantial commitment, saying: “Such relational contracts … may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are interested in the parties understanding and necessary to give business efficacy to the arrangements will stop examples

“Nevertheless, there seems to me to be no difficulty, following the established methodology of English law for the implication of terms in fact, in implying such a duty into any ordinary commercial contract based on the presumed intention of the parties.”2 In dealing with the presumed intention of the parties he said: 59

1 2

[2013] EWCH 111 ibid at [131]

3

Ibid at [134]

of such relational contracts might include some joint-venture agreements, franchise agreements and long-term distributorship agreements.”4 The subject of good faith in contract law is developing; in the interest of certainty, clarification in the application of Yam Seng is very much required. In light of Yam Seng, I will first consider the jurisprudence in the United Kingdom and proceed with a comparative analysis of Singapore’s position. The spotlight is on the interpretation and implication of implied terms as part of the judicial inquiry in ascertaining the underlying objective and intentions of contractual parties.

The application and effect of Yam Seng is not crystal clear.

Leggatt J’s reasoning has been referred to in subsequent cases of the High Court – no element of disapproval was detected by the Court of Appeal in Mid Essex Hospital Services NHS Trust v.

Compass Group UK and Ireland (t/a Medirest).5 Therefore, the reasoning on the implied duty to act in good faith of Yam Seng has yet to be deliberated in the appellate courts.

The current approach by the courts is consistent with the general principle of English contract law that a term will not be implied if it is inconsistent with an express term of the contract. The law of contract seeks to provide certainty where private individuals can, to a certain degree, predict, control, and manage their risk, allowing contractual parties to incur reciprocal responsibilities and commitments. In addition, it elucidates uncertainties, defines and establishes the boundaries of risk, reward and recourse. The reasonable expectations of contractual parties must therefore be protected, and to allow an implied term to override an express one is inconsistent with the notion of freedom to contract.

On the flipside, contracts cannot be expected to provide for every eventuality or be shaped to suit the peculiarities of every commercial relationship. In light of the recent development in good faith, the recognition of an express obligation to act in good faith deconstructs the traditional role of good faith. Although there are no clear definitions or uniform interpretations of good faith, notably there are several terms that are often associated with good faith, among them terms like “equity”, “fairness”, “reasonableness” and “the protection of reasonable expectations”.

The recent developments in good faith can to a large extent be attributed to the changing judicial attitude in controlling contractual discretion. As Hooley observes, the preferred mechanism by which the English courts have sought to control the exercise of contractual discretion is through the use of a term implied in fact.6 In addition, he argues that controls that apply to the exercise of contractual discretionary powers boil down to a requirement of “good faith”, in the sense that the party exercising the discretion must do so honestly, and that this can be tested by asking whether the decision is one that no reasonable person acting reasonably could have reached in the circumstances.

Additionally, Hare identifies two contrasting problem that the courts face as it seeks to reconcile two principles that seem to pull in diametrically opposed directions.7 On the one hand, because the courts’ powers of review are conceptually based on implied terms, this should mean that the courts always have 4 ibid at [142] 5 [2013] EWCA CIV 200 6 Richard Hooley, ‘Controlling Contractual Discretion ‘ [2013] 72(1) The Cambridge Law Journal <http://journals.cambridge.org/abstract_S0008197313000019> accessed 7 July 2015 7 Christopher Hare, ‘The expanding judicial review of contractual discretion: carte blanche or carton rouge?’ [2013] 28(5) Journal of International Banking and Financial Law 269-277

regard to the particular contract’s express terms, and should be prepared to withhold any such review upon it being shown that there is any inconsistency between the express and proposed implied terms. On the other hand, allowing express clauses to exclude implied terms relating, in particular, to the good faith and honesty of a particular person is something repugnant to English commercial law.

This article examines the development of good faith by analysing the reasoning of Yam Seng, and seeks to elucidate the uncertainties inherent in this decision. As we shall observe, there is a lack of clarity on the application of Yam Seng in subsequent cases with later cases such as Medirest, reflecting a judicial preference for a narrow interpretation in cases where expressed terms of “good faith” are drafted into the contract.8 SUBSEQUENT CASES On the issue of implied duty of good faith, the High Court judge in Bristol Groundschool Limited v. Intelligent Data Capture Limited9 (Richard Spearman QC) expressly followed the approach in Yam Seng. The judge expressed that the cases relied on by counsel for the claimant were either irrelevant because the duty implied was of a fiduciary nature, or because they were lower court decisions which were contrary to the judgment of Leggatt J in Yam Seng.10 The agreement in question was a “relational” contract of the kind referred to by Leggatt J11 and was found to have contained an implied duty of good faith. The judge noted from the judgement in Yam Seng that good faith extends beyond, but at the very least includes, the requirement of honesty.12 In Medirest13, the parties entered into a long-term facilities contract, the contract contained a duty to cooperate in good faith at Clause 3.5 which provided: “The Trust and the Contractor will cooperate with each other in good faith and will take all reasonable action as is necessary for the efficient transmission of information and instructions and to enable the Trust or as the case may be, any Beneficiary to derive the full benefit of the contract.”14 The question before the Court of Appeal was the extent to which the clause provided an overarching obligation on the parties to operate with each other in good faith even though there was no express term to affect this duty in the contract. After weighing up the competing submissions on the construction of Clause 3.5 Jackson LJ observed that the obligation to co-operate in good faith was not a general one; rather, it was specifically focused upon the two purposes: “the efficient transmission of information and instructions”15 and “enabling the Trust or any Beneficiary to derive the full benefits of the contract”.16 His Lordship referred to three authorities Manifest Shipping Co Ltd v.

Uni-Polaris Insurance Co Ltd,17 Street v. Derbyshire Unemployed Workers Centre18 and CPC Group Ltd v. Qatari Diar Real Estate Investment Co.19 Observing that it was “clear from authorities 8 9 10 11 12 13 14 15 16 17 18 19

[2013] EWCA CIV 200 [2014] EWHC 2145 (Ch) ibid ibid at [196] ibid [2013] EWCA CIV 200 at [105] ibid at [14] ibid at [107] ibid [2001] UKHL 1, [2003] 1 AC 469 [2004] EWCA Civ 964, [2005] ICR 97 [2010] EWHC 1535 (Ch)

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that the content of a duty of good faith is heavily conditioned by its context”,20 he was of the view that, when read in the context of Clause 3.5, parties were obliged to work together honestly endeavouring to achieve the two stated purposes. Accordingly, the Court of Appeal overturned the decision of the lower court, finding that commercial common sense did not favour the addition of an overarching duty to co-operate in good faith in circumstances where good faith has been expressly provided for in the contract. Thus, this reflects a judicial preference for a narrow interpretation in cases where expressed terms of “good faith” are drafted into the contract. On first glance, it appears that the Court of Appeal had in Medirest approved the decision in Yam Seng. However, on further analysis, it is noticeable that Jackson LJ referred only to Leggatt J’s well-formulated (and uncontroversial) summary of the duty of good faith and did not base his decision on the case. Additionally, Beatson LJ focused on Leggatt J’s analysis of the content of good faith and confirmed that the duty is heavily conditioned by the context of the agreement. Therefore, although the Court of Appeal cited Yam Seng, it is clear that it did not base its decision on the principles stated in that case.21 However, in TSG Building Services PLC v. South Anglia Housing Limited,22 the High Court held that an express term of the contract requiring parties to “work together” and “in the spirit of trust, fairness and mutual co-operation” had as its object “the benefit of the Term Programme”. TSG’s counsel emphasised on the term to “act reasonably” in respect of “all matters governed by the contract” and submitted that the termination agreement was itself expressly qualified by a requirement that the terminating party shall not terminate unreasonably or vexatiously. The principal issue was whether South Anglia was under a duty to act in good faith when deciding whether to terminate the contract under the clause. In reaching his decision, Akenhead J considered Yam Seng and classified it as an “extremely illuminating and interesting judgement”23 but would not draw from it any principle of general application to all commercial contracts. He stated that the limited aspects of good faith considered by Leggatt J, namely honesty and fidelity, did not impinge in this case. Similar to the approach in Medirest, the learned judges considered Yam Seng but did not base their decision on the principles of that case.

Therefore, these cases reflect uncertainty, as Yam Seng appears to contradict with the general view that there is no overriding principle of good faith and that English courts have always thought that parties should be entitled to negotiate freely between themselves and contract, as they desire, without fear of interference from the courts.

DEFENDING YAM SENG Leggatt J, in finding that a duty of good faith could be implied into ordinary commercial contracts as a matter of fact in certain circumstances based on existing principles and the presumed intentions of parties, had consolidated disparate lines of authority, thus extending the application beyond the limited categories of cases in which such a duty has been implied by law. Leggatt J had found that one breach was repudiatory, but also went on to consider Yam Seng’s pleadings that there was an implied term in the agreement that parties would deal with each other in good faith. The judge went on to consider the two specific terms that Yam Seng contended were to be implied into the agreement – a duty not to give false information and a duty 20 ibid at [109] 21 22 [2013] EWHC 1151 (TCC) 23 at [46]

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not to undercut duty free prices. However, these observations from the judge came only when considering the requirements of the good faith duty,24 which he had already found to be implied without any specific reference to the individual parties.25 Leggatt J’s reasoning on the implication of the good faith duty was therefore made on the general norms that underlie almost all contractual relationships – including an expectation of honesty.

Although the duty of good faith was not the central issue of Yam Seng, subsequent cases have made references to Yam Seng, 26 suggesting that there has been a change in the approach such that a duty of good faith may be implied through the process of contractual interpretation. English law has traditionally rejected a general principle of good faith and is “aloof and suspicious”27 of such a doctrine and the various “competing conceptions”28 of it. The limited recognition reflects an individualistic view of English contract law and, as Ollerenshaw observes, does not reflect the co-operative model that occurs in practice. 29 The emphasis on freedom of contract has led on occasions to harsh results that are inconsonant to the objective of developing the law in line with the need for certainty. Arguably, Leggatt J’s reasoning in Yam Seng restores a balance by consolidating existing legal reasoning and following the established methodology of English law regarding the implication of terms – the presumed intention of the parties is in fact given effect.

Leggatt J also emphasised that content of the duty is heavily dependent on context and established through a process of construction of the contract.30 Therefore the presumed intention of the parties and its recognition is entirely consistent with the case-by-case approach favoured by the common law; as Bingham LJ (as he then was) observed, there is no general duty of good faith but rather a series of “piecemeal solutions in response to demonstrated problems of unfairness”.31 Furthermore, Leggatt J was doubtful that English law was ready to recognise a requirement of good faith implied by law into all commercial contracts, even as a default rule. Leggatt J identified two aspects of good faith to fall within shared values and behavioural norms, identifying them as, first, honesty and observance of certain standards of commercial dealing and, second, fidelity to the parties’ bargain.32 He had also implied a duty of honesty on ITC in the provision of information to Yam Seng and a duty on ITC not to approve a domestic retail price which undercut the duty free retail price.

This suggests that there is no conflict between the implied duty of good faith and the overriding principle that freedom and sanctity of contract is at the very heart of commercial relationships. The reasoning in Yam Seng may be accepted as a novel approach that attempted to distinguish the general duty of good faith from an implied duty of good faith. The former is 24 Yam Seng Pte Ltd v. International Trade Corporation Limited [2013] EWCH 111 at [155-164] 25 ibid at [119-154] 26 ibid 27 E Mckendrick, Good Faith: A Matter of Principle, in Good Faith in Contract and Property 39 (ADM Forte ed., Hart Publishing: Oxford and Portland, Oregon, 1999) at [41] 28 R Brownsword, N. J Hird and G Howells, Good Faith in Contract: Concept and Context (1st, Ashgate Publishing, Aldershot 1999) at [10] 29 Z Ollerenshaw, ‘Managing Change in Uncertain Times’ in Larry A. DiMatteo, Qi Zhou, Severine Saintier, Keith Rowley (eds), Commercial Contract Law Transatlantic Perspectives (1st, Cambridge University Press, Cambridge 2013) 30 Attoney General of Belize v. Belize Telecom Ltd [2009] UKPC 10 31 Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] 1 QB 433 Bingham LJ at [439].

32 Yam Seng Pte Ltd v. International Trade Corporation Limited [2013] EWCH 111

not recognised in English contract law, while the latter fits the doctrine into established rules by implying a clause on the duty to act in good faith into what the learned judge themed “relational contracts” that “may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties’ understanding and necessary to give business efficacy to the arrangement”.33 LIMITED APPLICATION OF YAM SENG Limits on the future application of Yam Seng are necessary.

The true impact of Yam Seng in subsequent cases has not been deliberated in detail. However the prudent course by the courts in applying Yam Seng may limit it to such “relational contracts” which require trust and an expectation of honesty. This is notwithstanding the conundrum in defining and identifying a “relational contract”, as any wise counsel can argue with no difficulty that every contract is inherently relational in nature.

It is arguably the choice of labelling by Leggatt J defining the duty as one of “good faith” that resulted in the confusion.

Grangerhighlights that the uncertainties inherent in Yam Seng could have been avoided with a simpler course of implying the specific terms and recognising, once those terms are implied, there is no role for the general good faith duty to play.34 Leggatt J could have also relied on various existing doctrines and techniques in the law, for instance misrepresentation, mistake, duress, and implied terms that are frequently seen as playing specialised roles in securing at least a minimum level of good faith. Nevertheless, although the learned judge, by labelling the duty as one defined as “good faith”, used an indeterminate term, it is noted that this very indeterminacy affords flexibility and accommodates equitable solutions that allows for a more informed development of the law.

GOOD FAITH IN SINGAPORE In Ng Giap Hon v. Westcomb Securities Pte Ltd and Others,35 the Singapore Court of Appeal refused to imply a duty of good faith. Two issues were raised: first, whether an entire agreement clause precludes the implication of terms, and second, whether a duty of good faith could be an implied term in law. The agent, Ng Giap Hon, claimed that the company, Westcomb Securities Pte Ltd, in intercepting commissions which were allegedly due to him, had breached its duty to act in good faith – a duty he asserted was implied.

Andrew Phang JA, giving the judgment of the court, considered separately the possibility of a term implied in law and a term implied in fact. The Court of Appeal held on the facts of the case that a duty of good faith could not be implied in law as a term into the agency agreement. Extreme caution was required as the same term could be implied in future for all contracts of the same type. In consideration of the “precedent” effect, “the doctrine of good faith is very much a fledgling doctrine in England and (most certainty) Singapore”.36 Phang JA applied the usual test for implying a term in a particular factual matrix, namely necessity, and found that an implied term of good faith was not necessary in this case.

Although the Singapore Court of Appeal did not have the benefit of considering Yam Seng, the reasoning of Leggatt J may not

33 ibid 135-140 34 E.Granger, Sweating Over an Implied Duty of Good Faith [2013] L.M.C.L.Q 418 at [426] 35 [2009] 3 SLR (R) 518 36 ibid at [47]

integrate well in Singapore’s legal and cultural framework. First, English law has become increasingly influenced by European Union (EU) civil law concepts and the reasoning in Yam Seng could be perceived as a decision that is not an accurate reflection of the development in English contract law. Leggatt J was of the opinion that in refusing to recognise a general obligation of good faith, the UK would “appear to be swimming again the tide”.37 He made reference to EU legislation – in particular, the Unfair Terms in Consumer Contracts Regulation 1999 which gave effect to a European directive containing a requirement of good faith. The reasoning of Leggatt J may be perceived as an attempt to harmonise the contract law of EU member states, such as the Principles of European Contract Law proposed by the Lando Commission and the European Commission-proposed Regulation for a Common European Sales Law, both of which embody a general duty to act in accordance with good faith and fair dealing.38 The “penetration” and “pressures towards a more unified European law of contract” in the role and significance of this principle will, in Leggatt J’s opinion, continue to increase.39 Second, it is noted that Leggatt J had doubted that English Law is ready to recognise a requirement of good faith as a duty implied in law. His reasoning can be perceived as an attempt to fit the facts of Yam Seng within well-established principles of law.

Furthermore, with reference to methodology and sequencing in Leggatt J’s judgement, he considered the two specific terms that Yam Seng contended only when considering the requirements of the good faith duty, which he had already found to be implied without any specific reference to the individual parties. With this chain of reasoning, most commercial contracts will qualify within the category of “relational contracts” and a duty of good faith in performance could be implied into them. Therefore, the reasoning and application of Yam Seng may be limited in Singapore’s legal framework.

However, following the inherent uncertainties in the applicability of Yam Seng, good faith has in recent times subsumed an important role in contractual drafting as contractual parties seek to agree and define the four corners of their obligations. The Singapore Court of Appeal in HSBC Institutional Trust Services (Singapore) Ltd (Trustee of Starhill Global Real Estate Investment Trust) v. Toshin Development Singapore Pte Ltd40 upheld, with V.K. Rajah JA giving the judgement of the Court, the good faith clause as it found no good reason why an express agreement between contracting parties that they must negotiate in good faith should not be upheld. The Court of Appeal considered the broader impact on notions of public interest and emphasised the need to protect the freedom to contract and accept that such clauses are in the public interest as they promote consensual disposition of any potential disputes.41 The reasoning of Yam Seng is thus unlikely to have a major impact on the Singapore legal landscape.

CONCLUSION Cohen and Farina argued that English law was a poor choice for governing transnational contracts, prompting debate on the subject.42 In the words of the authors, it would be a “nasty surprise” for a party to a London-seated arbitration governed

by English law to discover that any duty of good faith must 37 Yam Seng Pte Ltd v. International Trade Corporation Limited[2013] EWCH 111 at [124] 38 ibid 39 ibid 40 [2012] 3 SLR 738 41 ibid at [40] 42 Paul Cohen and Gabrielle Farina, ‘Rue Britannia: Why English law is a poor choice for international arbitration’, (2014) Global Arbitration Review 9(2)

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have been stated expressly in the contract, such duty not being generally implied.43 This criticism calls for a closer look at the English position on good faith, and its fairness assessed in light of the aforementioned decisions which suggest that English law is capable of recognising a duty of good faith in certain contractual arrangements. In relation to the developments in Yam Seng and the potential influences of European contract law, English contract law, by introducing a concept as inherently nebulous as “good faith” is unlikely to promote commercial certainty, match the expectation of individual parties or promote pacta sunt servanda – unless Yam Seng is kept in its proper limits, as Leggatt J had been at pains to ensure.44 Similarly, caveats must be placed on Yam Seng’s application in Singapore. The increased demand for alternative dispute resolution calls for her laws to be nurtured and developed so as to advance her ambition as a forum of choice for global disputes.

The key success factor in advancing Singapore’s ambition is to continually ensure legal certainty as lawyers naturally prefer to choose such jurisdiction in which the contract will be readily applied.45

43 ibid 44 Margarita N Michael, ‘The ‘Good Faith’ Movement: Swimming Against the Tide’, (2015) The European, Middle Eastern and African Arbitration Review 2015 2(3) 45 ibid

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image: Flickr CC @ MIke Kline

Justification for the Consideration Doctrine

By Jeremy Sia INTRODUCTION The consideration doctrine has been, and still is, the cardinal rule governing contract enforceability in Singapore and the United Kingdom (UK). To think that this doctrine is without its contradictions would be a superficial assessment of Singaporeâ&#x20AC;&#x2122;s legal climate.

The doctrine of consideration has been subjected to much debate and castigation from lawyers and legal academics. Radicals1 have even proposed the possible abolishment of the consideration doctrine, in favour of other contractual principles such as promissory estoppel. While acknowledging the cause behind the fervent rejection of the consideration doctrine, this article is against a complete abolishment. Upon a deeper deliberation of its inherent contradictions, it is possible to arrive at a clearer understanding of consideration. Even as legal academics have since weighed in on this issue, this article aims to shed new light on this moot point.

1 SGCA 3

Andrew Phang Boon Leong JAâ&#x20AC;&#x2122;s dicta on the possible abolishment of the doctrine of consideration in Gay Choon Ing v. Loh Tze Ti Terence Peter [2009]

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THE THEORY AND DEFINITION Before situating its position in the Singapore legal climate by delving into relevant case law, it is first necessary to state the principles which govern the doctrine of consideration. In brief, consideration may be defined as follows: “A valuable consideration, in the sense of law, may consist either of some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other ”, Currie v Misa.2 There are also a number of rules governing consideration: (i) consideration must move from the promisee, Tweddle v Atkinson; (ii) Consideration must not be in the past, Pao On v Lau Yiu Long;3 (iii) Consideration must be sufficient but need not be adequate, Chappell & Co Ltd v Nestle Co Ltd.4 THE SOURCE OF THE CONFLICT Prima facie, the theoretical make-up of consideration seems perfectly coherent. However, it is no astonishment that a fixed formula governing the rules and definition of consideration has come under pressure in light of ever-changing contractual circumstances. To clearly display its inherent contradictions, attention will be focused on the judgment and impact of two famous contract cases: Williams v. Roffey Bros & Nicholls (Contractors) Ltd5 and Foakes v. Beer.6 In Williams, the defendant had subcontracted the joinery work required for the refurbishment of flats to the plaintiff. Williams was to receive payments in stages as sections of the work were completed. About 80 percent of the work had been done before Williams ran into financial difficulties. He had underestimated the price of the job and had not managed his workforce effectively. The defendant had a liquidated damage clause in their main contract that would apply if completion were late. To ensure that the refurbishments were completed on time, the defendants agreed to pay an additional 575 pounds per flat. The plaintiff completed a further eight flats for which the defendant paid a proportion of the original price.

The plaintiff stopped work and sued for the outstanding amended amount. Unsurprisingly, the defendants argued that Williams had not provided sufficient consideration for the promise of the additional payment, as he was already contractually obliged to complete the refurbishment. The court agreed that there was an existing contractual duty to refurbish the flats and that could not amount to good consideration, nor could the courts rewrite a bad bargain. However, the courts found in favour of Williams and held that, in return for the promise of extra payment, the defendants had received a “practical benefit”, which could amount to consideration. In Foakes, Foakes owed Beer 2090 pounds.

They agreed that Foakes could pay in installments. Beer agreed that no further action would be taken if the debt was paid by the agreed date. Later, Beer demanded an additional interest payment that Foakes refused to pay. Eventually, Beer succeeded in the claim for the interest payment. To sum up the cases, both promises, sought by the promisees, had the effect of causing the promisors to wind up receiving less than what was initially agreed upon when the contracts were formed. Since both cases appear to be circumstantially analogous, the attempts at resolving the two contradictory outcomes have formed the crux of the debate surrounding the relevance of consideration as a legal doctrine.

ATTEMPTS TO CLARIFY Academics have sought to address the contradiction surrounding 2 3 4 5 6

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[1875] LR 10 Ex 153 at [9], Lush J’s definition of consideration [1980] AC 614 [1960] AC 87 [1991] 1 QB 1 [1883-84] LR 9 App Cas 605

the two cases, so as to safeguard consideration’s integrity. Currently, the contemporary view has sought to differentiate both cases by considering Williams as a “pay-more” case and Foakes as a “pay-less case”. This is substantiated by Mindy Chen-Wishart: “[T]he problem traditionally posed by the requirement of consideration for the enforcement of one-sided contract modifications; one-sided in the sense that one party promises to give more for the same reciprocal obligation (an adding modification), or to accept a reduced reciprocal obligation (a subtracting modification) from, the other party.”7 However, it is submitted that classifying both cases such that they may be amicably reconciled with one another is a superficial way of addressing this contradiction. The categorization of “pay-more” and “pay-less” is merely a clever play with words to force the law into line. Essentially, the cases beckon the same question: Under what circumstances of contract modification will there be sufficient consideration such as to ensure contract enforceability?

SINGAPORE LEGAL OPINIONS Attempts to clarify this contradiction have been manifestly unconvincing as evident in the opinions and judgments of key legal figures in Singapore. In the dicta of the Singapore Court of Appeal case Gay Choon Ing v. Loh Tze Ti Terence Peter, Andrew Phang Boon Leong JA stated that “the [consideration] doctrine both continues to be an entrenched part of the Singapore contract law landscape and is simultaneously bedeviled by both theoretical as well as practical difficulties”.8 The term “practical benefit” does not seem to sit well with legal opinion in both Singapore and the UK – it has often been labeled a judge-made principle. This is seen in the Singapore case law of Chwee Kin Keong v Digilandmall.com Pte Ltd where Rajah JC states: “The modern approach in contract law requires very little to find the existence of consideration. Indeed, in different cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration… The marrow of contractual relationships should be the parties’ intention to create a legal relationship.”9 The term confers wide discretion to judges and the courts to find sufficient consideration to uphold a contract. While it is arguable that judges’ discretion is integral to surmount the challenges of constantly evolving legal issues, this is not a satisfactory solution for this particular area of the law.

Legal certainty is a primordial tenet of contract law and broadly speaking, an inconsistent legal framework would only operate to reduce the quality of Singapore’s rule of law. Even so, an overly formulaic approach towards consideration may suffer significant opposition as it blurs the lines between common law and legislation – the doctrine of consideration is a common law construct after all. As such, a middle ground must be established. The current contradiction has led some to feel that ‘it will, absent exceptional circumstances, be all too easy to locate some element of consideration between contracting parties. This will render the requirement of consideration otiose or redundant, at least for the most part’.10 ALTERNATIVE ACADEMIC OPINION Particularly interesting is the legal article ‘In Defence of Foakes v Beer’11 by Janet O’Sullivan. It was asserted that money is an 7 Mindy Chen-Wishart, ‘A Bird in the Hand: Consideration and One-Sided Contract Modifications’ in AS Burrows, E Peel (eds), Contract Formation and Parties (Oxford University Press 2010) at [4] 8 [2009] SGCA 3 at [92] 9 [2004] 2 SLR(R) 594 at [139] 10 Sunny Metal & Engineering Pte Ltd v. Ng Khim Ming Eric [2007] 1 SLR(R) 853 [30] 11 Janet O’Sullivan, The Cambridge Law Journal Vol.55, No.2 (jul 1996) 219-228

“incontrovertible benefit”12 and hence it is not possible for a person to benefit - legally or practically - by accepting lesser money.

On the other hand, in Williams, should the claimant breach the contract to cut losses, under contractual remedies, the defendant would have been awarded damages. However, the “practical benefit” gained by the defendant in retaining the claimant’s services outweighed the monetary value of the damages that would have been received. By looking at Williams in this manner, it does seem to address the conflict and the unconvincing classification of “pay-more” and “pay-less”. However, this prompts the question: in cases of accepting less money- in a debt case -, is it not possible to find sufficient consideration? If the answer is in the positive, declaring the judgment of a certain type of case a forgone conclusion, it will seem inevitably too rigid a rule.

PROPOSED STAND While applauding the coherence of the argument in ‘In Defence of Foakes v Beer’, there is certainly room for a deeper analysis.

As mentioned earlier, a middle ground has to be established in order to bring some clarity into this area of law. Arguably, this is best achieved by taking a collective approach of looking at the intention of the contracting parties alongside the doctrine of consideration. What is meant by the “intention of the parties”? Essentially, it takes into consideration what was conceived by the promisor in terms of the benefit received and whether the contractual modification was suggested by the promisor or the promisee. In answering these questions, it will make more logical sense to find whether consideration is sufficient and whether the contract is valid. In Williams, the contractual modification was initiated by the promisor in light of the financial difficulties of the promisee and the benefits of retaining the services provided by the promisee. Logic dictates that a party will not propose a contractual modification, which will result in losses for himself or herself. Therefore, the benefits gained from the contractual modification is one that should not be determined factually by the courts, but instead by looking at the intentions of the contracting parties. Essentially, the fundamental question to address is whether the promisor conceived some sort of benefit, bearing in mind that the finding of benefit should not be an issue for the courts to adjudicate on. In Foakes, the contractual modification was requested by the promisee in which the promisor agreed.

Therefore, it is hard to determine whether there were benefits conceived by the promisor. It may well be a gratuitous promise, or may even potentially be a case of economic duress and undue influence. Hence, it is understandable, from a conservative viewpoint, for the courts to discount sufficient consideration so as to avoid an unfair judgment. It is very hard – bordering on impossible – to determine the intention of the contracting parties in Foakes. If one refers to Re Selectmove13 by looking at the intention of the contracting parties and consideration concurrently, it will place the law in line. In Re Selectmove, the company Selectmove Ltd owed the Inland Revenue Tax money. The managing director of the defendant company met up with a representative from the Inland Revenue Tax to discuss a possible installment payment pertaining to the outstanding amount. The clearance to pay installment was not determinative and the Inland Revenue Tax sued for the total amount of arrears. Foakes was followed and it was held that there was no sufficient consideration for part payment of debt. It is notable in Re Selectmove, that the proposal for payment by installments was made by the defendant (alleged promisee). Though the courts may see the “practical benefit” in the case, it nevertheless should be such that the claimant (alleged promisor) actually conceived of the benefit. Rather than having the benefit based on the judges’ opinion, the benefit must be a 12 13

Id., 223 [1995] 1 WLR 474

benefit that is conceived of by the promisor. As asserted, a considerable degree of certainty exists in cases in which the promisee was the party who requested the contractual modification.

Hence, it is more than justifiable for the courts to hold that the contract was invalid for want of consideration. Finally, the incompatibility of Williams and Foakes is best summed up by Lord Gibson in Re Selectmove : “[I]t is clear … that a practical benefit of that nature is not good consideration in law.”14 What is clear, is that the courts did indeed see the “practical benefit” gained by the alleged promisor, however due to the fact that Foakes was a House of Lord case and Williams was a Court of Appeal case, the judges were compelled by the principle of precedent to refer to Foakes in adjudicating Re Selectmove.

IN PRACTICAL APPLICATION Therefore, it is safe to say that the legal principle in Williams deals with an entirely different situation as that in Foakes, leaving the principles outlined in both cases intact. As mentioned earlier, to formulate a fixed decision for all debt cases involving accepting lesser money would manifest unnecessary harshness.

In cases of debt, by looking at the intention of contracting parties and consideration concurrently will prove just as useful.

Take for example: A owes B money and B suggests that A pays a lesser sum in discharge of the full sum, in which A agrees. Consider another example - analogous to Foakes- where A owes B money and A requests to pay a lesser sum in which B agrees. In the first scenario, it is likely that the courts should find sufficient consideration as B must have conceived some sort of benefit in accepting lesser money in discharge of the full sum, hence the proposal for contractual modification. The courts should not be obliged to find any factual evidence of the benefit received by B as the judges may not share the same view as B when in comes to the term “benefit”. The courts should look at the intention of the promisor when the contractual modification had occurred in deciding if there is sufficient consideration in upholding the contract. On the other hand, in the second case, it is unlikely that the courts will find sufficient consideration. The modification was proposed by the promisee in which the promisor agreed. As mentioned above, there may be too many factors in play such as economic duress, gratuitous promise and so on. Faced with such uncertainty, it will be justifiable – from a conservative viewpoint – for the courts to find a lack of consideration so as to avoid an unfair decision.

THE ABOLISHMENT OF “PRACTICAL BENEFIT”?

By looking at contract cases in this manner, does “practical benefit” then become irrelevant? The term is arguably, reflective of the court’s difficulty and unease in finding sufficient consideration in the case of Williams. This is because Williams is reflective of an uncomfortable stretch of the word “benefit” by the judiciary. The proposed method of reconciling this contradiction serves to protect the law on consideration from extensive criticism. Evident in Singapore case law, the view that “consideration is merely an evidence of serious intention to contract”15 suggests an impassive attitude toward consideration as a key principle governing contractual enforcement. It has led many to suggest that “intention to create legal relations” should be the underlying factor governing the enforceability of contract. I disagree with this suggestion. As Mindy Chen-Wishart states: “[T]he idea that an undertaking seriously made is sufficient to justify its enforcement is simply wrong as a description of contract law.”16 Just as this essay is against the replacement of the doctrine of consid14 15 16

Re Selectmove [1993] EWCA Civ 8 at [15] [2009] SGCA 3 [113] Chen-Wishart, supra n7, [33]

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eration, it should not be the case whereby consideration plays a “stand-alone” role without due recourse to the intention of the contracting parties in the enforcement of contracts. For one, to determine the enforceability of contract merely by looking at whether the promise was seriously made does not protect the rights of the promisee. The promisor may claim that the promise made was a “mere puff ”17 in which the promisee had mistakenly satisfied the conditions required. This may leave the promisee without legal redress for the losses that he/she had suffered.

Essentially, a predisposition to seeing whether promises were made seriously would reduce the certainty and fairness in this area of the law. To take the bold move of abandoning the doctrine of consideration may lead to an exacerbation of the current conflicts in contract law. To replace one set of problems with another is certainly not a favorable way to resolve this issue.

CONCLUSION The lack of clarity in the practical application of the doctrine of consideration as discussed earlier seems to be used as a trump card (or rather an enabling tool) to garner support for the abolishment of consideration. Some advocate the replacement of the consideration doctrine with promissory estoppel, economic duress as “they appear to more clearly suited not only to modern commercial circumstances but also (more importantly) to situations where there has been possible ‘extortion’”.18 Some support the replacement of consideration with the finding of the intention to create legal relations as “[t]he marrow of contractual relationships”.19 It is questionable whether these alternatives “will in the long run work any better than the rules of consideration”.20 The same can be said of promissory estoppel and economic duress. The doctrine of promissory estoppel in itself has shown incoherence and ambiguity and the principle of economic duress is simply too undeveloped and narrow to be established as the cardinal rule enforcing contract enforcement. Instead of calling for the complete abolishment of the doctrine of consideration and consequential replacement, it will be argued that it is – on all levels – more beneficial to incorporate all the doctrines and principles in the adjudication of contract enforceability. Consideration should still remain the foundation for contract recognition whilst the other doctrines should play ancillary roles, hence ameliorating the shortcomings of the respective doctrines. This is arguably the best approach to go about developing the law of contract.

17 18 19 20

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Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 (Lindley LJ) supra n15 [2004] 2 SLR(R) 594 at [139], citing VK Rajah JC Patrick Atiyah, ‘Essays on Contract’, (Clarendon Press, 1986) 241

CONTEXTUALISING THE RULE OF LAW IN SINGAPORE

By David Lui An examination of how the rule of law has been applied in Singapore; whether its credibility has been eroded by its criticisms and how it may be valorised.

Image: mises.ca

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This article aims to arrive at an informed understanding of the rule of law in Singapore by (1) appreciating ‘law’ as a concept that was pragmatically transposed from Westminster to Singapore, (2) iteratively outlining the criticisms of Singapore’s rule of law and (3) considering the responses roundly proffered by the government.

It will first outline the status of the rule of law in the United Kingdom (UK) and how, although there may be a lack of consensus as to its exact meaning, this ideal still carries significant constitutional gravity. After which, it will examine how Singapore has come to inherit the rule of law from the UK and the importance of the legitimate continuity in such a heritage This article shall then outline the criticisms surrounding Singapore’s rule of law and consider how their various interpretations may buttress this examination. Further, it will consider the responses made by the government and assess its justifications.

Lastly, this article will assess the possibility of reconciling the various interpretations of Singapore’s rule of law. Even so, it ultimately hopes to shift the discussion away from pinpointing the ‘type’ of rule of law, to how this ideal may continue to stay relevant in its value as a tool for statecraft and a hedge for the common man.

I. RULE OF LAW: WESTMINSTER AND THE NATION STATE Westminster and the Rule of Law The rule of law in the United Kingdom often acts as the operative antagonist to the sovereign legislative reach of Parliament. An entrenchment of judicial activism has been gaining a notable traction there, with certain judges handing down judgements that give considerable esteem to the rule of law. Lady Hale went so far as to say that the courts may “treat with particular suspicion any attempt to subvert the rule of law by governmental action”.1 Putting aside the normative arguments for judicial deference in the face of professed parliamentary sovereignty, it is evident in manifold written judgements that the judiciary are as beholden to the rule of law as they are to the sovereign parliament.

No matter the content of the concept in question, Dicey’s rule of law is often employed as the starting point of most scholarly arguments concerning this theme. The Diceyan conception is said to be formal, with three main facets being outlined: first, that no man is punishable except under a distinct breach of law established in the ordinary legal manner before the ordinary courts; second, that no man is above the law; and third, that the law is sustained by an independent judiciary which develops the law incrementally by precedent, rather than a declaration of rights.2 Although commonly described as a thin conception, it is distinctive that Dicey’s doctrine often points toward a strong dislike for arbitrariness of any kind. Hence, his insistence on the separation of powers, there being an independent judiciary, and the democratically elected body of the legislative as the sovereign one of the three, largely diffuses the possibility of draconian laws being enacted.3 On the other end of the spectrum, the works of Dworkin and T.R.S Allan are often cited. These academics believe in a rights1 R (Jackson) v Attorney General [2005] UKHL 56, [59].

2 AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th edn 1959) 54.

3 Cameron Sim, ‘The Singapore Chill: Political Defamation and the Normalisation of a Statist Rule of Law’ (2011) 20 Pac. Rim L. & Pol’y J. 319, 322.

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based conception of the rule of law, “designed to capture and enforce moral rights”.4 Often called the ‘thick’ conception of the rule of law, it is is not without its controversies.5 Substantive theories make value judgements concerning the degree and the extent of rights to be enforced within the law. This is “to expound on a social philosophy”, which is, as Raz argues, what the law should not do.6 Moreover, there are reservations as to why Dworkin places his confidence in a judge instead of a legislator, who possesses the democratic mandate, to preside over “morally controversial disputes”.7 Consequently, on one hand Dicey presents a rather tight and selfregulatory conception whilst Dworkin and Allan insist on law as a vehicle through which rights are protected from executive power. The former purports a conception of law whilst the latter seems to contend with social philosophy rather than law itself.

This prolonged and stimulating debate has brought about an elusive consensus concerning the matter. Nonetheless, a keen application of this pivotal ideal has been used to the effect that it is widely accepted and well-established in the United Kingdom.8 The rule of law, its polarities notwithstanding, is a living concept that works to an effective extent there.

Rule of Law and the Nation State Likewise, the rule of law in Singapore as a popular article header is gaining an added traction as a prevalently discussed theme.9 Unbeknownst to some, the past 25 years of discourse on this concept in Singapore was preceded by a forthright emphasis on the rule of law as integral to the development of this nation. In one of his rare speeches on the topic, Lee Kuan Yew said: “You will have to breach the gulf between the ideal principle [of the rule of law] and its practice in our given sociological and economic milieu. For if the forms are not adapted and principles not adjusted to meet our own circumstances but blindly applied, it may be to our own undoing.” 10 This speech was given to the University of Singapore Law Society.

The year was 1962 and Separation had not yet occurred. The content of Mr Lee’s quote belies his strong belief in pragmatism.

This insistence on the careful transposition of Western ideals into the local climate through an informed evaluation of acute realities would go on to shape Singapore’s political discourse for the years to come.11 In his keynote address at the Rule of Law Symposium in 2012, Minister for Law K. Shanmugam spoke of the rule of law as “not only an aspiration and an ideal, but also a necessity borne out of exigency” during Singapore’s formative years.12 Cautioning his listeners, he then qualified that such a principle “must be applied 4 Ronald Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986) 11.

5 Thio Li-Ann, ‘Between Apology and Apogee, Autochthony: The ‘Rule of Law’ Beyond the Rules of Law in Singapore’ [2012] Sing. J.L.S. 269, 272.

6 Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467, 468.

7 Supra note 5 at 273.

8 Constitutional Reform Act 2005, part 1.

9 V.K. Rajah, ‘The Rule of Law’ The Straits Times (Singapore, 7 January 2015).

10 Lee Kuan Yew, Speech at the University of Singapore Law Society Dinner (18 January 1962), online: National Archives of Singapore < http:// www.nas.gov.sg/archivesonline/data/pdfdoc/lky19620118.pdf > accessed 1 July 2015.

11 K. Shanmugam, The Rule of Law in Singapore [2012] Sing. J.L.S. 357, 358.

12 Id., at 357.

with hard-nosed practicality”; interposing that the true success of the rule of law “lies in the benefits it produces for society and individuals”. 13 In both their speeches, it was not said whether the rule of law in Singapore should adhere to a thick or thin conception.

Nonetheless, echoes of its indispensability in the Singapore state continue to resound. Critics concede to this fundamental importance, but not without certain rehearsed and be-laboured criticisms. It has been argued that there exists in Singapore a dualistic arrangement. Our legal system is highly competent in the “context of economic competitiveness”, but habitually performs short of satisfactory in the “protection of fundamental rights”.14 This paradox has been succinctly expressed as the “dual state construct”.15 Jothie Rajah argues that Singapore’s duality lies in the fact that it “matches the ‘law’ of the liberal ‘West’ in the commercial arena while repressing civil and political individual rights”.16 Another academic went so far as to comment that “commercial law remains depoliticised and readily enforceable” whilst civil-political rights are eroded in order to achieve an “expansion and rationalisation of state power”.17 These are harsh words, and on a closer reading, suggests that the realism maintained by Mr Lee as necessary to Singapore actually obliges a political illiberalism through the subversion of rights. Taken at face value, the statistics are telling, and in 2014, despite ranking 10th in the rule of law index by the World Justice Project, Singapore came in 24th overall for the protection of fundamental rights.18 Taking these polarising views into account, there is a pressing need to arrive at a more informed understanding of the rule of law in Singapore. This article will do so by outlining the academic criticisms on the subject, as well as the responses roundly proffered by the government. Lastly, this article will offer reasoned reflections on the extant conception of the rule of law in Singapore and their implications beyond the criticisms and counter-arguments.

II. ACADEMIC CRITICISMS OF THE RULE OF LAW The Rule of Law and the Colonial State Singapore’s origins as a colonial state perpetuate a legitimising effect on its laws. By inheriting a colonial legal system in both name and form, Singapore has given off the impression that it is a nation founded on the familiar constructs of “Western” notions.19 For example, the “declaratory and symbolic legal texts” of Singapore, such as the Constitution and the Proclamation of Singapore, are evidently Western.20 The fact that they bring with them a distinct colonial concept points toward Singapore as being moulded by “Western notions of legitimacy and political liberalism”.21 As the legal texts of a nation set the tenor for its legal system, the rule of law in Singapore that would follow is intuitively assumed to be rooted in liberality.

In the Proclamation of Singapore, Mr Lee made explicit mention that “Singapore shall be forever a sovereign democratic and 13 Id. 14 Jack Tsen-Ta Lee, ‘Shall the Twain Never Meet? Competing Narratives and Discourses in the Rule of Law in Singapore’ [2012] S. J.L.S. 298, 298.

15 Supra note 3 at 321.

16 Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge University Press 2012) 23.

17 Supra note 3 at 351.

18 World Justice Project Rule of Law Index 2014.

19 Supra note 16 at 28.

20 Id. 21 Id.

independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society.”22 Rajah remarks that the words are iconic of a “Western model” of “founding principles”, and hence appropriates a “foundational claim” to a “liberal account of ‘law’’’.23 By underscoring the continuity in the mode of governance during the tumultuous transition from “colony” to “nation”, Mr Lee not only legitimises the new nation as one birthed from the colonial fabric, but legitimises the rule of law as well. Just three years after giving his speech to the law students at the University of Singapore, Mr Lee was tasked with a pragmatic transposition of these ideals into the strictures of a very young nation. He could not do so without first establishing the legitimacy and authoritative lineage of these ideals as integral to Singapore.

Beyond what was declared, it is pertinent to see what content was actually inherited. The Constitution was taken and augmented from the 1963 constitution of Malaysia24, whilst the Criminal Code bears similarities to the Indian Penal Code. Within the British common law legal heritage that was inherited, perhaps the component most advantageous to the nation was contract law. The law of contract was transposed largely intact from the British, and even though the Practice Statement on Judicial Precedent of 11 July 1994 relieved the Singapore jurisdiction of being bound by the decisions made in English common law and the Privy Council, such a limitation only applied to Singapore’s Court of Appeal.25 Hence, it was in 1995 during a Parliamentary Debate that Mr Lee as the Senior Minister of Singapore drew the distinguishing correlation between the economy and the rule of law in Singapore. He said that “Singapore’s reputation for the rule of law has been a valuable economic asset, part of our capital, although an intangible one. It has brought to Singapore good returns from the MNCs, OHQs, the banks, the financial institutions, and the flood of capital”.26 This quote is telling of the prevailing “Singapore Consensus”27, which chiefly employs the rule of law for economic growth. It is clear, given the realities, that the government’s priorities lie in securing socio-cultural and economic rights rather than civil and political rights, especially in the context of the post-Cold War era and how ‘good governance’ was a matter of ‘efficient and effective government’ and securing ‘political stability’.28 Outwardly, this employment of the rule of law for economic gain points us to a rather thin conception. It seems very much to resonate with Hayek’s view that the rule of law will provide for the burgeoning of the free market where the enforced laws may be interpreted to be an “instrument of production, helping people to predict the behaviour of those whom they must collaborate, rather than as efforts toward the satisfaction of particular needs”.29 By implication, however, a post-colonial narrative emerges. It becomes apparent that the governance of Singapore as a nation is evidently not so much different from how it was governed as a colony. In both the colony and nation, it is argued that “law 22 Independence of Singapore Agreement 1965 23 Supra note 16 at 29.

24 Chan Sek Keong, ‘The Courts and the ‘Rule of Law’ in Singapore [2012] S. J.L.S. 209, 215.

25 Eugene Kheng-Boon Tan, ‘Law and Values in Governance: The Singapore Way’ (2000) HKLJ 91, 96.

26 Id., 96.

27 Supra note 24 at 212.

28 Supra note 5 at 272.

29 F.A. Hayek, The Road to Serfdom (The University of Chicago, 1994) 81

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becomes an instrument to pursue the objectives of the state”, namely economic progress.30 Given that a thin conception of the rule of law provides for, inter alia, economic predictability, it is no discovery that strong executive power is used as a means of enforcing the “established” but the already transposed rule of law in the local climate of Singapore today. Analogous to the colonial state, this use of executive power and legal rationality is ultimately used to “entrench and consolidate” state power.31 This is where the criticism begins, and Jayasuriya, for one, terms this interpretation as “statist image of law” as opposed to “liberal image of law”.32 In other words, the rule of law in Singapore strengthens the control of civil society amidst prevailing state prerogatives.

Authoritarian Rule of Law In her book, Rajah conceptualises the rule of law as legitimising the “concentration of power” and “reinforcing the hegemony” of the political motives of the incumbent leadership.33 Her theory is predicated on the assertion that Singapore is categorically authoritarian; hence the rule of law is employed to systematically express this model of governance.34 It does so, inter alia, by silencing critique and entrenching the narrative of Singapore as the “vulnerable nation”.35 This is achieved, she argues, through the enactment of legislation and its perpetuating effect on social discourse.36 The Punishment for Vandalism Act 1966 was enacted during a volatile state of world and domestic affairs.37 The Singapore state was a little over a year old, and the leadership was concerned, and rightly so, over the “survivability and viability” of the country.38 It was still dependent on Britain for defence, had to deal with the forthright threat of Konfrantasi, and had the difficulty of enforcing its anti-communist stance in the context of the Cold War.39 The enactment of the bill essentially elevated the status of vandalism to a crime. What was formerly a minor offence relating to property under the Minor Offences Ordinance on nuisance became a “new category of criminal conduct” which increased the fines from $50 to $2000 and extended the jail term from a week to a total of three years. Most notably, it instituted the caning of offenders, with a minimum of three and a maximum of eight strokes.40 During that period, having been squeezed from a lawful engagement in politics, vandalism was used as an effectual means for the opposition (Barisan Sosialis) to express themselves.41 Although there was no explicit mention that the Punishment for Vandalism bill was drafted for the explicit purpose of deterring vandalism conducted by supporters of the communist Barisan Sosialis, such a notion may instinctively be inferred from a closer reading of the Parliamentary debates. It was ultimately enacted to that effect: A fine and a week long jail term would not deter potential offenders who were politically driven and may have relished the prospect of martyrdom, but the shame of corporal 30 K. Jayasuriya, ‘A Framework for the Analysis of legal institutions in East Asia’ in K. Jayasuriya (eds), Law, Capitalism and Power in Asia (Taylor & Francis e-Library, 2006) 3.

31 Id., 2.

32 Id., 152.

33 Supra note 16 at 8.

34 Id. 35 Id., 15.

36 Id. 37 Id., 67.

38 Id. 39 Id., 68.

40 Id., 79.

41 Id., 75.

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punishment most certainly did.42 Consequently, this same act was enforced in 1994 on the infamous Michael Fay.43 He was sentenced to six strokes of the cane.44 The issue therefore presents itself thus: Why was a seemingly anachronistic piece of legislation still employed thirty years later, where the context was strikingly dissimilar to 1966?

And consequently, how was it justified? Here Rajah argues that this was achieved by upholding the legality of the law and advancing “Asian values”.45 In spite of the overwhelming American critique, the state responded by first insisting that the law had to take its course.46 In a statement, the Ministry of Home Affairs stated that “the law in Singapore must take its course, and that Fay would be given every opportunity to defend himself with representation by counsel”, and that “Singaporeans and foreigners are subject to the same laws in Singapore.”47 These two phrases denote the tenets not dissimilar from a Diceyan conception. It forthrightly adheres to the principles of a right to fair trial whilst upholding equality before the law. This is therefore an example of how the rule of law in Singapore is employed to deflect concerns over the relevance of harsh legislation in the face of foreign scrutiny. In other words, a rather thin conception of the rule of law legitimises what history would otherwise have labelled politically anachronistic laws.

Moreover, Rajah argues that the Michael Fay case demonstrated how the rule of law, when coupled with Asian values, serve to instruct the desired narrative of “nation”. In Goh Chok Tong’s National Day Rally speech that year, as a preamble to mentioning the Michael Fay case, he iterated at length about the eminence of Asian values in Singapore society, and how a departure from these values may initiate a “decline” in Singapore society.48 The “rhetoric and instructive” tone in his speech, Rajah argues, acts to justify the law of corporal punishment as an “antidote” to “decline” as seen in the West.49 Goh was further quoted to have said:50 “Singaporeans have the right values to progress. Our Asian culture puts group interest above individual… You may think decline is unimaginable. But societies can go wrong quickly… Since then both the US and Britain have seen a sharp rise in broken families, teenage mothers, illegitimate children, juvenile delinquency, vandalism and violent crime.”

Rajah theorises that by aligning the state’s socio-economic progress as a product of adhering to Asian culture, Goh conjoins both the rule of law and Asian values. Harsh laws, such as corporal punishment, are justified through these values, thereby perpetuating an instructive discourse: the rule of law, or rule of harsh laws for that matter, is not only justified, but is advanced to the effect that by being aligned to Asian values, it is able to act against “the decline” of society, further economic development

42 Id., 76.

43 Michael Peter Fay v Public Prosecutor (1994) M/A No. 48/94/01 (Sing. Subordinate Cts).

44 Supra note 16 at 90.

45 Id. 46 Id. 97 47 ‘The Law Must run its course,’ The Straits Times (4 March 1993) 25 48 Supra note 16 at 107.

49 Supra note 16 at 109 50 ‘National Day Rally Address by Prime Minister Goh Chok Tong, Speech in English, August 1994’, online: National Archives of Singapore < http://www.nas.gov.sg/archivesonline/data/pdfdoc/1994NDRenglishspeech. pdf> (last accessed 1 July 2015).

and, by that extension, “secure the nation”.51 With this in mind, the thin conception of the rule of law not only legitimises harsh laws; it goes further to cement the narrative of the “vulnerable nation” in social discourse. Ultimately, Rajah insists on a “rule by law” rather than a “rule of law”.52 The laws of the land reinforce the national narrative of vulnerability whilst legitimising the concentration of power in the hands of a few.

Communitarian Rule of Law A divergence in scholarly criticism is led by Thio Li-Ann, who has written expansively on the rule of law in Singapore. Most particularly, she contends that the rule of law in Singapore is characterised as a communitarian conception, one that recognises the interests of the group over the interests of the individual.53 In her evaluations, she does not fully concede to the “statist model”, where civil-political rights are “trumped” by state prerogatives.54 Instead a communitarian reading of the rule of law allows for a more “structured conception of rights”.

She asserts that it is perhaps preferable to frame the rule of law in Singapore as one that seeks “an optimising equilibrium between rights, competing interests, responsibilities and goods”.55 This reading perhaps sidesteps the “rule by law” conception which purports to wholly repress rights. She argues that the communitarian conception does not necessarily see “rights” as adversative to the “common good”, “but integral to it”.56 An official conception of this communitarian narrative was underscored in the Shared Values White Paper 1991, which was presented to Parliament in 1991 and accepted in 1992.

The first of the five key thrusts in the white paper, “Nation before community and society above self ”, is pertinent to this discussion.57 It states that: “A major difference between Asian and Western values is the balance each strikes between the individual and the community.

The difference is not so stark as black and white, but one of degree. On the whole, Asian societies emphasise the interests of the community, while Western societies stress the rights of the individual. … While stressing communitarianism, we must remember that in Singapore society the individual also has rights which should be respected, and not lightly encroached upon. The Shared Values should make it clear that we are seeking a balance between the community and the individual, not promoting one to the exclusion of the other.”58 In itself, the White Paper arguably does not retain any real legal or constitutional weight.59 However, it does function as a marker in the development of Singaporean thought. From it, it is possible to infer the government’s notion of balancing rights within a community, and by extension, how the latter serves to 51 Supra note 16 at 115.

52 Id., 23.

53 Supra note 5 at 296.

54 Id., 278.

55 Id., 279.

56 Id. 57 Shared Values White Paper 1991 para 20.

58 Shared Values White Paper 1991 para 24 and para 30 59 Chua Beng-Huat, Communitarian Ideology and Democracy in Singapore (London and New York: Routledge, 1995) 33.

augment the rule of law in Singapore to one that operates on a precedential rather than an oppressive basis.

According to Thio, this official position is analogous to certain judicial attitudes in “prioritising the larger interests of the community”, albeit phrased rather differently.60 In Chee Siok Chin v. Ministry of Home Affairs, Rajah J. (not to be confused with the author) said:61 “The tension between the individuals right to speak and/or to assemble freely and the competing interests of security and/or public order calls into play a delicate balancing exercise involving several imponderables and factors such as societal values, pluralism, prevailing social and economic considerations as well as the common good of the community. … Permitting unfettered individual rights in a process that is valueneutral is not the rule of law. Indeed, that form of governance could be described as the anti-thesis of the rule of law – a society premised on individualism and self-interest.”

This dicta is significant in the way that the judiciary and the executive formulate a consensus. There are “prevailing economic considerations” in the balancing of civil-political rights vis-à-vis the “common good of the community”.62 This reasoning perhaps points to the appreciation that civil-political rights in Singapore are not prioritised against a national narrative to bolster political hegemony, but rather a “delicate” balance is employed, so as to safeguard the interests of the community.63 Rajah J.’s reasoning here is that civil-political rights must be tempered in the context of the larger community; to propagate these “individual rights” as absolute ideals would undermine how the rule of law purports to function in society.64 This communitarian conception is also highlighted in the Maintenance of Religious Harmony Act 1990 (MRHA) which empowers the Minister for Home Affairs to make a restraining order against a person who, in his position of authority in a religious group or institution, has caused, inter alia, ill-will or hostility between religious groups, or has promoted a political cause under the guise of propagating religious beliefs.65 This power is generally restrained by internal limits, such as the Presidential Council for Religious Harmony and the President’s personal discretion. However, it is notable that the decisions taken by these parties are exempted from judicial review.66 Prima facie, the preclusion of judicial review and the distillation of the political sphere seem to further buttress political discretion.

However, Thio argues that the preclusion of judicial review may go so far as to reflect a “brand of relational constitutionalism, whose concerns transcend a mere keeping of the peace in favour of the quality of the peace kept”.67 There is some purchase to the argument that an open court proceeding would aggravate already amplified sentiments, hence “non-justiciable restraining 60 ‘Keynote Address by DPM Prof S Jayakumar at the IBA Rule of Law Symposium 2007’ online: Ministry of Law < https://www.mlaw.gov.sg/news/ speeches/keynote-address-by-dpm-prof-s-jayakumar-at-the-iba-rule-of-lawsymposium.html> (last accessed 1 July 2015) .

61 [2006] 1 S.L.R.(R.) 582 at para 52 (H.C.) 62 Supra note 5 at 279.

63 Supra note 61.

64 Id. 65 Maintenance of Religious Harmony Act, S 8 (1) 66 Supra note 5 at 282.

67 Id.

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orders” may be a more adequate approach.68 Moreover, the creation of the Presidential Council of Religious Harmony under the MRHA is an example of a “dialogical model” to circumscribe conflict, where relationships may be formed between religious groups so as to discourage a polarisation of views in the event of conflict.69 In this way, the communitarian conception of the rule of law does not necessarily point to a “rule by law” but rather sees Singapore as one macro community whose collective rights and expectations must be managed and prioritised over the prerogatives of individuals that belong to micro communities.70 This is evident in both judicial attitudes as well as the legislation emanating from the conjoined executive and legislature. The communitarian conception therefore interprets the rule of law in Singapore as facilitative of achieving an “equilibrium” between the “competing rights” and prerogatives of the nation, communities and the individual.

III. OFFICIAL RESPONSES: THE VALORISATION OF THE RULE OF LAW AS FOUNDATIONAL AND JUSTIFIED Incumbent Minister for Law, K. Shanmugam has gone considerable lengths in addressing the criticisms surrounding Singapore’s rule of law. In his work, Shanmugam chooses not to delve into overtly discursive discussions on “thick” or “thin” conceptions of the rule of law.71 Instead, his argument is that the extant rule of law in Singapore is foundational to the country, and that its alleged shortcomings are “defensible”.

Pointing towards a pragmatic approach, Shanmugam maintains that the ultimate “success” of the law turns on the “benefits it produces for society and individuals”.72 This clearly echoes Lee Kuan Yew’s 1962 speech, which contends that since “reality is relatively more fixed than form”, it is the “form” that must be adapted to the reality.73 Framing Lee’s presage in contemporary terms, Shanmugam advances the view that the rule of law “must deliver good governance”.74 However, it is not exactly clear how “good governance” may be defined and so the alleged attrition of civil-political rights seems to go unjustified as the rule of law is adapted to Singapore’s climate.

Nonetheless, this prevailing issue is addressed with, inter alia, two points. The first was made explicitly in response to the exceptions made to due process in Singapore’s rule of law.

The latter is chiefly manifest in the often overstated Internal Security Act (ISA). Even as rehearsed discourse surrounding this legislation appears to continue indefinitely, the Minister for Law sees such a curtailment to the complexion of natural justice in Singapore as indispensable, but not without unambiguous “explanation and justification”.75 Firstly, the Internal Security Act may perform what the ordinary process of law may not. Whilst the latter is “deliberate” in the sense that it punishes “after the fact”, the ISA has the facility for “preventative” and “decisive” action.76 This approach is argued to have the necessary expediency to counteract the “countervailing 68 Id. 69 Id. 70 Id., 283.

71 K. Shanmugam, ‘The Rule of Law in Singapore’ [2012] S. J.L.S. 357, 357.

72 Id., 358.

73 Lee Kuan Yew, Speech at the University of Singapore Law Society Dinner (18 January 1962), online: National Archives of Singapore < http:// www.nas.gov.sg/archivesonline/data/pdfdoc/lky19620118.pdf > accessed 1 July 2015.

74 Supra note 71 at 360.

75 Supra note 71 at 363.

76 Id.

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security threats” of today, such as terrorism and religious extremism.77 Additionally, this form of preventive detention, harsh as it actually is on the detainee, is not without recourse to adequate rehabilitation programmes.78 The stronger vindication for the existence of such an exceptional legislation would be the “safeguards” that have been put in place so as to “prevent abuse”.79 Summarily, the detainee’s case will be evaluated by an “Advisory Board within three months of detention, and regularly thereafter”.80 Moreover, if the Advisory Board motions for the release of the detainee, the detention may not continue without the President’s concurrence.81 Here, Shanmugam argues that the Singapore instance of preventive detention can be contrasted to that of the United States (U.S.), where individuals suspected to be terrorists were detained at Guantanamo Bay with the aim “putting them out of the reach of protections” that would avail them under U.S. law.82 Viewed in such a manner, it is possible to postulate the Singaporean approach may be the lesser of two evils – adequate oversight and vigorous rehabilitation programmes may be sufficient justification for the existence the exception taken to the normative process of justice.

The second point; that of “free and fair Parliamentary elections” augments the first.83 Whether the electorate sees that the “good governance” is being delivered and that the rule of law is capable of holding the government to account, may chiefly be expressed by universal franchise. According to Shanmugam, this form of accountability stands as the “ultimate test”, and carries more weight than “any academic commentary” or “foreign opinion”.84 Hence, the current arrangement of the law in Singapore, whether or not it may be viewed as harsh but justified, or otherwise, arguably turns on the democratic fact that the electorate ultimately decides the government of the day.

CONCLUDING REMARKS The differences between the various academic positions as well as the government’s can be explained by conceding to how the current reality of law necessitates different interpretations.

Persuasive as it may be, the colonial narrative possesses an obsolescent interpretation of the rule of law as a fixture wielded by state power. It points to the rule of law as asymptomatic of inheriting a bend toward strong executive power continuously consolidated by the state. Although academic analyses lend some credence to this narrative, what has always been required of the post-colonial discourse is a more extant analysis of the law in Singapore. A singular employment of this narrative would compel a rather empirical evaluation of the rule of law in Singapore and thus fail to afford a thorough appreciation of modern constitutional arrangements.

Rajah’s authoritarian conception advances the view that law is a means of facilitating discourse which consolidates political gain. What is admirable about this view is its appreciation of how law may thoroughly shape social and political discourse.

Rajah’s conception clearly advances the view that the intentions behind such an employment of law were not particularly benevolent. As liberating as it seems, however, it is arguable that a reading of such a conception is best tempered with pragmatic 77 78 79 80 81 82 83 84

Id. Id., 364.

Id. Id. Id. Id. Id., 360.

Id.

historical analyses. Depending on the lenses of the historian, the unswerving resolve for political stability and the realisation of shared national interests may just as easily be construed as a penchant for selfish political gain and hegemony. Additionally, this argument is relatively new compared to Thio’s body of work; whether it can stand the test of academic discourse will be indicative of the authenticity of its claims.

Comparatively, the communitarian conception as espoused by Thio, similar to Rajah’s authoritarian conception, acknowledges how the emphasis on Asian Values goes some distance in validating the harsh or illiberal laws. The divergence between the authoritarian and communitarian conceptions, however, exists in the reasons underlying the existence of such laws. The latter interprets the current reality of law in Singapore as an outgrowth of communitarian values whilst the former sees law as a means for surgically affecting discourse.

that is experiencing an advent of polarising cultural wars where information is now instantaneous. For Singapore’s rule of law to continue to operate as an instrument for statecraft and maintain its respected standing, its content and form will have to adapt to these changing realities just as it had done so in the past.

Contrary to convention, Singapore’s rule of law has never been, and will never be fixed. Perhaps the most perceptible mark of our rule of law is that it is neither inert nor is it capriciously malleable. The imperative for us to grasp is that the rule of law is an ideal that is in perpetual evolution. The mantle now falls on us to decide how the law will continue to shape the existence of Singaporean society for generations to come.

By implication, it is arguable that Thio’s academic interpretation lends weight to the assertion that the rule of law in Singapore is not strictly formal. Returning to the differing conceptions of the rule of law, a substantive rule of law is not necessarily contingent on the inclusion of civil-political rights. It is notable that what is required under such a species of the rule of law is that it must possess a certain degree of content as opposed to being strictly procedural or formal. Upon further interpretation, the communitarian conception is suggestive that Singapore’s rule of law does indeed possess content of some inimitable value.

This implication is perhaps iterated by Shanmugam. Although categorical interpretations are forthrightly eschewed, the Minister for Law does acknowledge that the rule of law in Singapore operates to meet certain specified aims.85 Whilst credence is given to the “universality” of the rule of law’s “principles”, the arrangement in Singapore is undeniably a product of unswerving pragmatism.86 To that end, it is arguable that the ostensible exceptions it takes to property rights and due process should not necessarily be construed as being overtly formal or abusive, rather it forms part of the substantive qualities of the whole, which so far has been consented to by the electorate and continues to meet the exigencies of the country’s circumstances.

Summarily, this article concurs with the academic conception espoused by Thio, as well as the justifications provided by Shanmugam. Conversely, the assertions that law in Singapore has been employed to orchestrate executive dominance and curtail discourse, are rebuttable presumptions.

Given the constraints, however, this article is indisputably a broad and simplified appreciation of the extant laws of the land. For a more complete analysis of Singapore’s rule of law, recourse must be had to a structured examination of our constitution; a meticulous comparison between controversial and uncontroversial pieces of legislation; as well as an appraisal of instances where our common law has purposefully diverged from its English origins.

Lastly, within this prevailing rule of law conversation, it is perhaps prudent to turn to the more pressing issue. It is now no longer significant to ask whether the ‘Singapore narrative’ of the “improbable nation” is enough to justify the evolution and current position of Singapore’s rule of law.87 Rather, the discussion should centre on how the current rule of law in Singapore will remain relevant in effectively governing a country 85 86 87

Id., at 357.

Ibid., 365.

Id., at 357.

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INTRODUCTION

CLEAR SKIES AHEAD FOR SINGAPORe ?

Considering the effectiveness of the Transboundary Haze Pollution Act 2014 in tackling the haze problem.

By Ruth Ng

Image: Flickr CC @ Johan Pixels

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When addressing the perennial haze pollution problem, the Minister for the Environment and Water Resources, Dr Vivian Balakrishnan, stressed that â&#x20AC;&#x153;we, in Singapore, cannot simply wait and wishfully hope that the problem will be resolved on its own.â&#x20AC;?1 In passing the Transboundary Haze Pollution Act, which came into force on September 25, 2014, the Singapore Parliament clearly agreed with these sentiments. The Act imposes both criminal and civil liability on entities that cause or contribute to haze pollution in Singapore. It allows regulators to prosecute and private plaintiffs to bring proceedings against companies and individuals who engage in conduct that cause severe air pollution in Singapore, even if they are not located in Singapore. The Act represents the most prominent step that the Singapore government has taken in expressing its stand on the issue.

The next question would naturally be whether and how far this enactment will help to resolve the problem.

This article seeks to examine the Transboundary Haze Pollution Act and the legal mechanisms it provides for enforcement and bringing offenders to account.

There are several innovative aspects to the Act which are of interest, such as the use of both criminal and civil liability, presumptions to establish liability, and not least its intended extra-territorial application. This article will evaluate the potential effectiveness of the Act in addressing the problem of haze pollution, in context of international law concerning transboundary environmental issues and existing efforts to combat the haze pollution. The Act provides a useful tool to counterbalance heavily stacked incentives for pollution, but its success ultimately depends on the sustained effort and coordination within and between the countries affected to strategically tackle haze pollution.

1 Singapore Parliament Second Reading (4 August 2014).

Transboundary Haze Pollution Bill.

BACKGROUND The legislation was first proposed after Singapore experienced particularly severe air pollution in June 2013, its worst haze occurrence since 1997. The Pollutant Standards Index (PSI) reached a record high reading of 401 at about noon on June 21. For reference, the National Environment Agency (NEA) labels a PSI reading above 300 as “hazardous”, the highest possible band.2 Public frustration with the prolonged and severe haze episode, and Parliamentary questions over government preparedness and long-term strategies for dealing with the haze,3 led to the consideration of legislation to deal with the problem. Yet, in introducing the Act, Dr Vivian Balakrishnan reiterated that it was “no silver bullet”, demonstrating caution in tempering expectations.

Transboundary haze pollution in Southeast Asia has been a longstanding issue since 1982. Transboundary haze pollution is defined under Article 1(13) of the 2002 ASEAN Agreement on Transboundary Haze Pollution (ATHP) as “haze pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one Member State and which is transported into the area under the jurisdiction of 2 Charissa Yong, ‘Haze update: PSI 401 at noon; many pharmacies still out of masks’ (The Straits Times, 21 June 2013) <http:// www.straitstimes.com/breaking-news/singapore/story/singaporehaze-update-psi-401-noon-many-pharmacies-still-out-masks-201> accessed 16 June 2015 3 Singapore Parliament Oral Answers to Questions (8 July 2013). Long-term Strategies for Dealing with the Environmental Aspects of Haze.

another Member State”. The countries affected by the haze are Indonesia, Malaysia, Singapore and Brunei and to a lesser extent, Thailand and the Philippines.

The transboundary nature of the problem, where the pollution originates in one country and the effect is felt in another, contributes to the trickiness of handling the situation, as it raises issues of coordination and state sovereignty in addressing the problem. The core of the issue, however, lies in enforcement of rules against polluters and targeting the underlying causes of the fires, which involve a complex web of factors. The recurring nature of the problem and the longstanding efforts to tackle it are testament to the difficulty in combating the problem.

CAUSES OF THE HAZE In order to achieve clarity in evaluating the effectiveness of responses to the haze problem, it is first necessary to identify its sources and understand its causes. The prime cause of the haze problem in Southeast Asia is the regular mass of plantation and forest fires lit across the Indonesian provinces of Sumatra and Kalimantan that occurs during the dry season.4 The sources of land and forest burning may be divided into three groups: traditional cultivators, small-scale investors, and largescale investors. The causes of the haze can be understood in terms of the incentives for continued burning.

4 Christopher M Dent, East Asian Regionalism (Taylor & Francis 2008) 228

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In terms of the incentives, slash-and-burn is the cheapest and fastest way to clear land, and there are strong commercial motivations for the clearing of forests. The most prevalent source of burning has been the large timber and palm oil plantation companies, which have gained huge concessions to land, reflecting the importance of the logging and palm oil sectors within the Indonesian economy.5 In 2013, the location of the most hotspots was the Riau province, which is Indonesia’s leading producer of oil palm.6 Small-scale cultivators compete with agribusiness for land: when large areas of forest land are cleared by agribusiness, mainly through burning, small-scale cultivators search for other land, which they once again clear using the slash-and-burn method. Traditional cultivators and indigenous people living in forested areas have ironically also burned plantations as a protest against the granting of rights to land, which they had previously used for cultivation or hunting, to agribusinesses and to their exclusion.7 The rising global demand for pulp and palm oil underlies the growth of agribusiness. Palm oil is used in a wide range of products, from margarine and chocolate to ice cream, soaps, cosmetics, and fuel for cars and power plants, and Indonesia is the world’s largest producer of palm oil. In 2013, the total plantation area for palm oil production in Indonesia was estimated to account for approximately 10 million hectares, generating 27 million tons of palm oil, with Indonesia aiming to increase palm oil production to 40 million tons by 2020.8 This demonstrates the scale of the industry and thus the potential for burning to continue and even increase.

While Dr Balakrishnan characterised the root of the problem as “misaligned commercial interests where companies burn forests and engage in unsustainable degradation of land because of short-term profits”, the strategic value palm oil has in generating critical national revenue makes the clearing of forest for cultivation part and parcel of Indonesia’s economic development, with the implication that incentives for burning are far more deep-rooted. Thus, given the impossibility of eliminating the entire palm oil industry, a long-term solution would require the adoption of less destructive methods of land clearing.

EXISTING EFFORTS In terms of prevention, on a national level, land clearing by use of fire has been illegal in Indonesia since 1997, with explicit punishment provisions against perpetrators, including imprisonment, license withdrawals and heavy monetary fines.9 However, commentators have pointed out a lack of effective enforcement of these laws due to corruption, collusion, incompetence of government officials, or confusion as to the appropriate enforcing authority.10 A complex hierarchy of 5 David Seth Jones, “ASEAN Initiatives to combat Haze pollution: An assessment of regional cooperation in public policy-making” (2004) Asian Journal of Political Science, 12:2, 59-77, 63 6 Michael Shean, ‘Indonesia: Palm Oil Expansion Unaffected by Forest Moratorium’ (USDA Foreign Agriculture Service, 26 June 2013) <http:// www.pecad.fas.usda.gov/highlights/2013/06/indonesia/> accessed 13 July 2015 7 Seth Jones (n5) 62.

8 Samantha Newport, Tomi Soetjipto, ‘Indonesia government addresses deforestation challenges in its aim to double palm oil production by 2020’ (UNDP, 11 March 2015) <http://www.undp.org/content/undp/en/home/ presscenter/pressreleases/2015/03/11/indonesia-government-addresses-deforestation-challenges-in-its-aim-to-double-palm-oil-production-by-2020.html> accessed 17 June 2015 9 Helena Varkkey (2013), “Patronage politics, plantation fires and transboundary haze” Environmental Hazards 12:3-4, 200-217, 205 10 Alan Khee-Jin Tan, “The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in Post-Suharto Indonesia” 13 (2005) NYU Envtl LJ 647

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laws and practices due to overlapping competences between various government agencies, as well as between central and regional authorities, make a coordinated response difficult, with loopholes to be taken advantage of. Conflicting maps and confusing ownership structures of the palm-oil conglomerates add to the challenge. Additionally, many cases brought to court end in acquittals, reversal of convictions upon appeal, or light punishments.11 Therefore, weak forestry governance and ambiguous property rights are obstacles to preventing burning and thereby haze pollution. Given that Indonesian laws prohibit burning to clear land, but enforcement has been difficult, the question would be whether the Transboundary Haze Pollution Act 2014 would run into the same problems when it comes to enforcement.

Significantly, Indonesia finally ratified the ASEAN Agreement on Transboundary Haze Pollution on September 16, 2014, twelve years after the agreement was first tabled in 2002. Under the Agreement, each state agreed to undertake individual and joint action to assess the origin, causes, nature and extent of land and/or forest fires and the resulting haze. They also undertook to prevent and control the sources of such fires and the resulting haze by applying environmentally sound policies, practices and technologies and to strengthen national and regional capabilities and cooperation in assessment, prevention, mitigation and management of land and/or forest fires and the resulting haze.

The Agreement as a hard law treaty obligation represents the culmination of decades of negotiations and cooperation on the problem. Of course, the Agreement would remain words on paper if not implemented, and David Seth Jones argues that the success of the various regional initiatives will depend particularly on the standards of governance and administration in Indonesia.12 It is worth noting that the ASEAN Agreement works on a state-to-state level, and does not target individual companies, and therefore the Act can be seen as complementing these efforts.

PROVISIONS OF THE ACT The Act directly addresses and aims to penalise those who cause or contribute to haze pollution in Singapore. The scheme outlines how these entities are to be identified. The various provisions’ approach to addressing aspects of the haze problem, and whether it overcomes or remains constrained, will be evaluated.

Criminal liability Section 5(1) provides that an entity will be criminally liable if it engages in conduct, or condones conduct by another entity or individual, which causes or contributes to any haze pollution in Singapore. If found guilty, the entity will be liable to a fine not exceeding SGD 100,000 for every day or part thereof that there is haze pollution in Singapore, up to SGD 2 million (Sections 5(4), 5(5)). One of the concerns here is the size of the fine. In the parliamentary debate, the fines were described as a “slap on the wrist”.13 Thinking about the cost of putting out the forest fires alone, much less the cost of smoke haze pollution, carbon emissions or health costs, the size of the fine is utterly insufficient to offset the massive environmental and economic costs. It may also be insufficient to deter large entities, given the great reduction in the establishment cost of plantations from engaging in such practices.

11 Alan Khee-Jin Tan (2015), “The ‘Haze’ Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze Pollution Act 2014” NUS Law Working Paper Series “2015/002” <http://law.nus.edu.sg/wps/> 12 Seth Jones (n 5) 68-72.

13 Singapore Parliament (5 August 2014). Transboundary Haze Pollution Bill, Second Reading. Vol. 92

Civil liability The civil liability regime allows affected parties to bring civil suits against entities causing or contributing to haze pollution in Singapore. Such a regime is in line with well-established legal precedents in tort law that hold the polluter who creates an environmental harm liable to pay compensation and costs to remedy that harm. There will be no cap on damages, and thus the court can determine damages according to tort principles of personal injury, damage to property or economic loss. The amount an entity may be compelled to pay in damages to compensate for the losses of a plaintiff can therefore go beyond the limit set under criminal liability.

Presumptions to establish liability The Act provides four legal presumptions, and it is for the accused or defendant to rebut the presumptions once the conditions for the presumptions are satisfied. The presumptions set up deal with the difficulty of establishing causation.

First, section 8(1) provides that there is haze pollution in Singapore, if at or about the same time there is a fire in a land outside Singapore, and the smoke from that fire is moving in the direction of Singapore. This holds despite the occurrence of fires in other or adjacent areas at or about the same time.

Satellite and meteorological evidence will be required to support this presumption, to show that the fire is occurring on the land concerned, and that the smoke is moving in the direction of Singapore. The irrelevance of other fires occurring at or about the same time makes it more difficult for the defendant to argue that the smoke came from other sources and prove that the smoke from fire on its land is not moving in the direction of Singapore.

Second, section 8(2) provides that the entity which is the owner or occupier of the land engaged in conduct, or condoned any conduct by another, which caused or contributed to that haze pollution, if the entity owns or occupies the land and the haze pollution in Singapore involves smoke resulting from fire on that land. In order to rebut this presumption, the entity must show that it and its employees did not engage in such conduct, and that it did not condone such conduct. The courts may construe “condoning” more or less strictly, in terms of the requirements for the actions an entity must have taken to demonstrate the extent of its disassociation from the use of fire.

Third, section 8(3) provides that the entity did engage in conduct which caused or contributed to haze pollution, if that entity participates in the management of another entity, and the second entity engaged in conduct, or engaged in conduct that condones any conduct by another, which caused or contributed to that haze pollution in Singapore. This further extends liability to any entity that participates in the management affairs of another entity. The prosecution will have to prove that the entity exercised control at a level comparable to that exercised by a manager or controlled its decisions pertaining to the land.

An objection might be made that sections 8(2) and 8(3) impose requirements and obligations that are too strict on the entity in question. However, the principle of prevention supports imposing such burdens on the entity. This principle is also behind, for instance, the Environmental Protection and Management Act’s imposition of an obligation on a principal contractor to prevent pollution from the construction site.14 The use of presumptions to shift the burden of proof to the defendant 14 Environmental Protection and Management Act (Chapter 94A, 2002 Rev Ed) s 39

is also in line with the approach taken in national environmental policy and law, necessary due to the nature of environmental problems.

Finally, section 8(4) presumes ownership or occupation of a land causing the fire from maps furnished by appropriate persons, governments or departments. For this presumption to be effective, data collection and accurate maps would be key.

However, one problem is the existence of multiple conflicting land-use maps by government agencies – different ‘official’ maps or versions may exist as different agencies frequently issue overlapping land use rights.15 Indonesia recently implemented the “one-map policy” to help resolve disagreements resulting from the use of different data and maps.16 The need for this scheme demonstrates that ambiguity over land tenure and land use rights is a real problem. Thus, a potential difficulty in establishing this presumption is that maps may be contested.

Entity An entity is defined under section 2 to mean any sole proprietorship, partnership, corporation or other body of persons, whether corporate or unincorporated. Villages or local communities that could form an unincorporated body of persons, to companies of various sizes and structures, would fall under this and thus could be held liable in theory. Additionally, section 5(3) provides that an entity is liable if it participates in the management including operational affairs, exercises decisionmaking or control, in another entity that commits the offence.

This extends the reach of the Act and seeks to hold responsible those involved further up the chain of command.

The definition of “owner” under section 2 is very broad, and includes any person who holds a valid lease, licence, permit, concession or other similar authorisation as regards land for the person to carry out farming operations or forestry operations. It also includes any person who has an agreement or arrangement relating to any farming operations or forestry operations in respect of land, with another person who has a customary right as regards the land. This covers occupiers of land and those having the authority or right to operate on the land. Such a definition is necessary in order to capture the wide range of land use arrangements.

Defences There is a defence where the haze pollution in Singapore was caused solely by a grave natural disaster or phenomenon, or an act of war (section 7(1)). The requirement that they must be the sole cause means that the entity must prove that it had not contributed to the fire in any way. Furthermore, the definition of a grave natural disaster or phenomenon that it must be “of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented by human action or avoided by the exercise of due care or foresight”, establishes the exceptional nature of the event and a high bar for the defence.

Hence, it is rare that this defence will be available.

Entities would be more likely to rely on the provision in section 7(2) that if the conduct causing or contributing to the haze was by another person acting without the accused’s or defendant’s knowledge or consent, the entity will not be liable. But this defence does not apply to any employee or agent, or any person engaged directly or indirectly to the entity, or anyone the entity had an

15 Alan Khee-Jin Tan (n 10) 20.

16 Tama Salim, ‘One-map policy helps resolve land disputes, overlapping permits’ (The Jakarta Post, 26 December 2014) <http://www.thejakartapost.com/news/2014/12/26/one-map-policy-helps-resolve-land-disputes-overlapping-permits.html> accessed 22 June 2015

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agreement with to carry out farming or forestry operations.

This makes it difficult to establish the defence since the entity must essentially prove the absence of a link. The entity can also raise the defence under section 7(3) that it took measures as was reasonable to prevent such conduct by the entity or individual.

The level of “all measures that were reasonable” remains to be determined when a case arises.

Extra-territorial application The Act intends extra-territorial application, as section 4 makes clear that the Act “extends to and in relation to any conduct or thing outside Singapore which causes or contributes to any haze pollution in Singapore”, indicating the exercise of jurisdiction, or legal power, outside territorial borders. Given the simple fact that the haze pollution is transboundary in nature with the sources of past episodes falling outside Singapore’s territorial boundaries, such extra-territorial reach is fundamentally necessary in order to fulfil the purpose of the Act. However, according to the principle of territorial sovereignty, a state may not perform any governmental act in the territory of another state without the latter’s consent.17 A state exercising legislative, adjudicative or enforcement powers in relation to or on the territory of another state can be regarded as infringing the exclusive competence of that state in regard to its own territory. For instance, the pollution source country can object to a law that may require the conduct of investigations, or the making of arrests on its territory.

Nevertheless, extra-territorial application of domestic laws is not unprecedented, as jurisdiction can be had under other principles besides the territorial principle. The active nationality principle allows a State to prosecute its nationals for crimes committed abroad and is universally supported. For instance, Australia bans its nationals from the killing of whales anywhere in the world.18 The passive personality principle allows a state to try foreign nationals for offences committed abroad which affect the prosecuting state’s citizens. This principle is less widely supported, but many states utilise it, and can be used to argue that the pollution harms the state’s nationals. Finally, states may also claim jurisdiction under the effects doctrine, based on the fact that the injurious effect, although not the act or omission itself, occurred in the territory of the state.19 Many cases between United States and Canada have allowed private legal actions against transboundary pollution with extraterritorial application. The case of Pakootas v. Teck Cominco Metals, Ltd20 in the United States concerned the applicability of the U.S. Comprehensive Environmental Response, Compensation, and Liability Act 1980 (“CERCLA”), a statute requiring the clean-up of polluted land, to a Canadian mine that caused environmental damage in the United States. Although the case essentially involved extraterritorial application of CERCLA to the foreign facility of a foreign party, 21 the Ninth Circuit court attempted to assert that the case “does not invoke an extraterritorial application of CERCLA to a facility abroad”.22 This demonstrates the reluctance of the court to recognise extraterritorial applicability of national laws, and the tricky balance that needs to be found in opening the door to the use of domestic litigation to address international transboundary 17 Peter Malanczuk, Akehurst’s modern introduction to international law (7th edn, Routledge 1997) 110-111 18 Environment Protection and Biodiversity Conservation Act 1999, ss 224, 229-230 19 Malanczuk 111.

20 452 F.3d 1066 (9th Cir. 2006) 21 L Zhang, ‘Pakootas v Teck Cominco Metals Ltd’ (2007) 31 Harvard Environmental Law Review 545, 551-552 22 Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1074 (9th Cir. 2006).

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pollution disputes.

Generally, in relation to transboundary pollution, domestic litigation in the pollution source state does not pose as much difficulty in relation to the question of jurisdiction as domestic litigation in the plaintiff ’s state. 23 One would have to overcome the hurdle of first establishing that the laws of another state apply to conduct occurring in the pollution source state. Litigation in the plaintiff ’s state would make investigation and enforcement more complex and requires greater justification. As observed earlier, Indonesia does not lack laws against the burning of forests and plantations, and thus navigating the overlapping jurisdiction that results, creates procedural and due process issues.

THE ACT AND INTERNATIONAL LAW There are two ways in which international law is relevant to the issue at hand: the first, substantive dimension concerns whether accepted international law principles support the Act, and the second, institutional dimension concerns international mechanisms for enforcing such principles. The way in which the Act engages with various international law principles has been explored above, to the extent that the Act may even be said to contribute to the developing area of international environmental law. Institutionally, the Act can be evaluated against other international mechanisms for enforcement available, and be seen itself as part of the scheme for enforcement.

Firstly, a case can be made for Indonesia’s state responsibility under international law for the transboundary pollution caused by its failure to control the fires. Principle 7 of the 1992 Rio Declaration provides that states have a common responsibility to protect the integrity of the Earth’s ecosystems, and in particular, Principle 2 ascribes responsibility to ensure that activities within a state’s jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 21 of the 1972 Stockholm Declaration on the Human Environment says that a state is responsible for any transboundary harm that results from activities carried out on its territory either by the state or by an entity within its control. The landmark Trail Smelter arbitration24 is known for its ruling that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another (state), when the case is of serious consequence and the injury is established by clear and convincing evidence”. The obligation to prevent transboundary harm has become well accepted by states, utilised in numerous treaties and supported by international judicial opinion, and can thus be said to be an established part of customary international law.

When it comes to enforcement of this recognised duty, there is the option of bringing the issue of Indonesia’s breach of its obligations before an arbitration panel or international court.

The Trail Smelter arbitration may be seen as a precedent for international transboundary dispute resolution. There, the arbitral panel awarded monetary damages in favour of the US, and also acted preventively, ordering the Trail Smelter “to refrain from causing any damage” in the future. The tribunal outlined a temporary regime to determine the questions of what extent to which it should refrain from causing damage, and what measures it should be required to adopt. With some irony, 65 years later the very same Trail Smelter was the subject of the Pakootas case, although this time rather than air pollution, it 23 Noah D. Hall. Transboundary Pollution: Harmonizing International and Domestic Law. University of Michigan Journal of Law Reform. 681 24 United States v. Canada (1941) 3 UN R.I.A.A. 1938 (1949)

involved the dumping of slag in the river. This demonstrates that the arbitration approach cannot be expected to provide a longterm solution to the problem of pollution.

Furthermore, bringing an action before an international tribunal may be unrealistic and require too great an expense of efforts.

Firstly, the source of the pollution is not as discrete and easily identified as a particular mining smelter like in the Trail Smelter case. The scale of the problem is such that it involves many actors and thus there would be a question of the scope of the case to be brought before an international arbitration panel. As the causes of harm are diffuse and spread over a wide area amongst a large number of people, it would be difficult to precisely demarcate the responsibilities of the state and ensure compliance, reducing the incentive to utilise this route. Furthermore, even if that were to be figured out, the fairness and efficiency of international adjudication in resolving such disputes may be questioned. Noah Hall points out that the entire Trail Smelter process took over a decade, requiring extensive diplomatic efforts, the preliminary work of the International Joint Commission, and the attention of the federal governments, such that the significant time and resources required of the parties undermined the overall fairness of the process.25 Fundamentally, the recognition that a principle of international law may or even should be applied to the situation is insufficient.

The more vexing and challenging question is of the appropriate mechanism and route to be taken to resolve the problem. The nature of the haze problem means that international arbitration may not be the best mechanism for resolving the problem.

Arbitral tribunals deciding on public international law issues, where states are the primary actors, would not be empowered to deal directly with private actors and interests. Additionally, it would seem out of place given the context of existing ASEAN efforts, in its characteristic consultative, non-adversarial ASEAN way, to tackle the problem. The use of domestic law can be seen as incorporating compliance with international transboundary pollution agreements, for example in this case the ASEAN Agreement on Transboundary Haze Pollution, thereby harmonising international and domestic law. Thus, international law principles can serve as the substantive backbone and background to supporting the Act and other efforts to tackle the problem of haze pollution.

RECOMMENDATIONS Having outlined and analysed the provisions of the Act, as well as how it fits into the regional and international scheme, attention may now be turned to how the Act can be practically and effectively utilised.

First, a strategic selection of the defendants to be prosecuted is key. Taking action against companies listed on Singapore’s stock exchange will be a logical step to avoid the practical difficulties of executive enforcement of the extra-territorial aspect of the Act. Such a successful prosecution will also have the advantage of complementing Indonesian efforts to tackle the haze, by ensuring that Singapore companies operating in Indonesia cannot skirt the law. Additionally, strong publicity of the litigation might add to the deterrent effect of criminal liability, as it would create a reputational risk to the business, affecting their image. Dr Balakrishnan made such an intention clear in Parliament when he said, “The Singapore Government, and this Parliament, wants to send a strong signal that we will not tolerate the actions of errant companies that harm our environment and put at risk the health of our citizens.”26 Bringing consumer 25 26

D. Hall (n 23) 710.

Singapore Parliament Second Reading (4 August 2014). Trans-

pressure and governmental pressure to bear on companies can thus help to encourage change. Again, this both throws down the gauntlet and encourages Indonesia to step up its efforts and law enforcement.

The rebalancing of economic incentives is a long-term solution, having recognised the strong short-term economic incentives for companies to slash-and-burn. It is clear that this is disastrous for the communities in the long-term. The Act goes some way in setting eyes on that long-term problem, and offering some rebalance against pollution. While the fine amounts seem modest, one hopes that the potential reputational cost and statement can at least serve as a form of deterrence. Of course, this has to be balanced with the possibility that companies could easily move to other places like Hong Kong to be listed, and continue their activities without sanction. Thus, Dr Balakrishnan also mentioned it would be “counter-productive for Singapore to have an overly legalistic and burdensome regime that makes it more difficult for responsible companies… to do business here.”27 Although such a fine balancing act is involved, the Act can be seen as a step forward nonetheless.

Next, the prosecution would need to ensure the maps it utilises are authoritative and updated. As the provision allows maps to be obtained from different sources, those owned by companies themselves and maps produced by other organisations and individuals may also be relied upon. Such a range of sources may raise the question of the reliability of the maps procured.

Thus, cognisant of the problem of overlapping concessions and boundary disputes, the Act’s allowance for filing charges for fires that occur in areas that are unequivocally within an entity’s possession will put the individual case on a better footing by firmly establishing the section 8(4) presumption. Going further, aerial photographs of burning concessions, coupled with individual testimonies to provide solid evidence can be used to enhance the prosecution effort.28 The success of the extra-territorial applicability of the Act will hang on the political and diplomatic relations between Indonesia and Singapore, as it is open to the pollution source country to object to the reach of the Act covering activities on their soil. The relations between the two countries involved will have an impact on the use of the Act, especially as transparency and cooperation on data collection will aid prosecution efforts. Additionally, cooperation over transboundary pollution has to be seen as part of a range of issues, including other important matters such as extradition, which Singapore and Indonesia are interested in working out diplomatically. The likelihood of cooperation from the Indonesian government is thus a big factor in the effective use of the Act to bring polluters to justice.

The importance of good relations is highlighted by the minor diplomatic row ignited during the 2013 haze incident, with a senior Indonesian minister accusing Singapore of “behaving like a child”.29 When the Singapore Prime Minister, Lee Hsien Loong, raised the issue at the UN General Assembly to seek international assistance in addressing the problem in 2006, Indonesia’s representative, Adiyatwidi Adiwoso Asmady, expressed displeasure, accusing Singapore of “badgering” and boundary Haze Pollution Bill.

27 Jessica Cheam, ‘Strong, not burdensome laws needed to tackle haze: Singapore minister’ (Eco-Business, 23 May 2014) <http://www.eco-business. com/news/strong-not-burdensome-laws-needed-tackle-haze-singapore-minister/> accessed 5 June 5 2015 28 Alan Khee-Jin Tan (n 10) 22, 39.

29 Derwin Pereira, ‘Indonesia’s mindset on haze casts pall on ties’ (The Straits Times, 22 June 2013) <http://www.straitstimes.com/the-big-story/ the-haze-singapore/story/indonesias-mindset-haze-casts-pall-ties-20130622> accessed 16 June 2015

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“misusing the UN forum in a frenzy of naming and shaming”.30 Following the episode, Indonesia banned the export of sand to Singapore, citing environmental degradation and the effect on its maritime boundaries.31 These incidents demonstrate that much sensitivity to the diplomatic relations between the countries is required in relation to tackling the haze problem.

CONCLUSION The problem of haze pollution illustrates the multi-faceted nature of environmental issues. The causes are economic, social and political, and require responses in various forms in all those areas. The passing of this Act by Parliament, translating the desire to combat the problem into a legal response, signals the importance of the issue and the seriousness with which Singapore takes it. It gives teeth to statements that the government is serious and willing to tackle the issue, and provides a high profile and visible tool for entities and companies causing haze pollution to be held accountable. Part of the significance of the Act lies in placing pressure on Indonesia, as it removes the argument that Singapore does not have skin in the game.

In order for the Act to have real effect and be more than just a statement of intent, it will have to be put to the test. If the innovative and bold legal approach to the transboundary haze issue taken in this legislation is to be effective, much more work will need to be done to ensure that a case can be successfully brought under it. Its effective use will depend on the concerted willpower of those collecting information. For a permanent resolution of the haze pollution, sustained and enhanced cooperation and preventive action among governments, as well as continued law and enforcement actions by other countries will also be necessary. Thus, both in the context of prosecution in Singapore, and in the larger regional context, the establishment of the Act is just one of many steps required.

Much more effort, requiring continued willpower to see the problem resolved, will be needed. The effort needed to remedy the situation is necessarily much greater than maintaining the status quo, but taking the path of least resistance would lead to environmental destruction and long-term unsustainability. It is far easier to destroy something than build it back up again.

In light of the hard work required and long battle ahead, it is worth recalling the immensity of what is at stake: the health and wellbeing of Singaporeans and Indonesians, the great long-term economic cost, the devastating environmental impact, and the future of subsequent generations.

30 Koh Kheng-Lian, “Transboundary and Global Environmental Issues: The Role of asean” (2012) 1 TEL 67, 76-78 31 ibid 78

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image: Wikipedia Commons

CRIMINAL TRIALS AND LIBERTY: THE RIGHTS OF OUR ACCUSED

By Tan Wen Shan

Why are criminal trials necessary? Why not do away with criminal trials altogether? After all, the former Chief Justice Chan Sek Keong once opined in a lecture that ‘[d]etention without trial is the most efficient and most effective form of crime control that can be devised’.1 However, the statement operates on the assumption that the sole purpose of criminal courts is to put criminals behind bars and the most efficient and least resource-depleting methodology would exclude a trial. Conversely, the purpose of a criminal trial is not only to bring about justice to criminals but also to protect the rights of the accused. This is often overlooked, with the term “suspect” often perceived as synonymous with culpability: intuitively, many of us lean towards a conviction to ensure that justice is done. Thus, we often underestimate the value of a fair trial for an accused, whose liberty and individual rights would be heavily compromised by a criminal conviction.

This article seeks to highlight an often overlooked but 1 Chan Sek Keong, ‘The Criminal Process—The Singapore Model’ (1996) 17 Singapore Law Review 431, 439.

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instrumental purpose of the criminal courts, namely, acting as a liberal institution of the state2 that holds the executive into account for every exercise of the monopoly of force for a conviction and infringement of individual liberties, demonstrating its commitment to constitutional liberalism.

Liberty is the core commitment of liberalism. One aspect of liberty is private , and refers to the liberty of a citizen to do what he or she wishes under the law as well as the aspiration to minimise government interference with individual liberty.3 Liberty also has a public dimension which is, according to Holmes, the ‘liberty of citizens to examine and criticise their government’. 4 The need for a fair trial or procedural fairness is inherently intertwined with the entire conviction process; it legitimizes a verdict. The Separation of Powers is an important 2 Ho Hock Lai, ‘Liberalism and the Criminal Trial’ (2010) Singapore Journal of Legal Studies 99 3 Ibid 88 4 Stephen Holmes, ‘Conclusion’ in Daniel Farber (ed), Security v Liberty—Conflicts between Civil Liberties and National Security in American History (Russell Sage, 2008) 204, 216–17.

doctrine that justifies the need for organs of the state to have mutual checks and balances, tempering the full force of Stateauthorised orders.

The article will then examine how the Presumption of Innocence and its related privileges of self-incrimination and right to silence are crucial in embodying the liberal principles that criminal courts should aspire to espouse. Next, Singapore’s approach in this area of law and its pro-prosecution stance will be evaluated and it is argued that our case law and statutory protection in this area has much to be worked upon. Justice done by criminal courts cannot singularly be measured in terms of punishment meted out to criminals, but also whether or not the accused are fairly treated.

WHY PAY THE PRICE OF CRIMINAL TRIALS? As Ho suggests and later rejects, a possible model for the criminal system would be to vest in the executive branch of government the authority to charge citizens for offences and to declare them guilty as charged, allowing the presumption of guilt to remove the need for criminal trials.5 Dispensing the need for trials could be seen as beneficial as it would promote efficiency, since the judicial system consumes vast resources.6 However, legal proceedings are not designed to make the administration of penal law more efficient,7 rather, the opposite seems to be true.

Illustrative of this is the orality principle, which requires that procedural acts be performed orally, usually in open court, and reducing written evidence to what is strictly necessary. This is a considerable hurdle for the prosecution as witnesses are often reluctant to testify openly for fear of reprisals.8 Also, allegedly ‘pro-accused’ rules of evidence and procedure, which will be further examined later, encumber the quest to get offenders behind bars.

We pay the price for a system of criminal trial because we fear the alternative of a police state as history has shown this time and time again. An extreme case in point would be the Nazis that detained, convicted and massacred millions of Jews in Auswitchz and Dachau for their “crimes” without fair trials. If fair trial rights had been granted to the accused for their alleged crimes before convictions were made, it would have been impossible for the Nazis to justify their persecution campaigns of the Jews without meeting “due process” requirements. Clearly, requiring proper procedure before the determination of culpability is extremely crucial to maintaining the rule of law. The idea that “criminals do not require trials since the result would be same anyway” is thus inherently flawed and contradictory.

The criminal trial is a vital process that holds the executive to account for its attempt to establish conviction and impose punishment. Allan rightly observes that ‘[t]he right to due process, or fair trial, ... is ... the most fundamental constitutional right of all, intrinsic to the idea of the rule of law’.9 The institution of the criminal trial is a form of accountable polity10 and is based on the demand that the executive justifies its call for criminal censure and punishment in an open proceeding where the accused has a right of challenge. The adequacy of the proffered justification can then be judged by the jury representing the 5 Ibid 87 6 Ibid 88 7 Rachel E Barkow, ‘Separation of Powers and the Criminal Law’ (2006) 58 Stanford Law Review 989, 1031.

8 Ho (n2) 88 9 TRS Allan, ‘Review of Richard Bellamy, “Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy”’ (2008) 67 Cambridge Law Journal 423, 425.

10 Michael P Zuckert, ‘The Virtuous Polity, the Accountable Polity: Liberty and Responsibility in The Federalist’ (1992) 22(1) Publius 123, 124.

citizenry or appointed judges.11 It must of course be noted that the trial is merely a brief process in the overall conviction scheme. The enforcement of criminal law involves a broad sequence of possible stages, including the police patrolling and investigation, arrest and interrogation of suspects, collation of evidence, evaluation of investigation papers by the public prosecutor, exercise of prosecutorial discretion, selection and drafting of the charges to prefer, preliminary appearance in court and taking of a plea, application for bail, conduct of a criminal trial, delivery of a verdict, mitigation and sentenc­ing, imprisonment (or, possibly, execution) of the person convicted, organisation of prison training, implementation of antirecidivism programmes and provision of post-release assistance in social reintegration.12 Yet, the trial is a significant tool against the potential abuse of the executive’s extensive coercive powers on citizens.

Thus, in the enforcement process, the executive will need to seek from the court, a body of the independent judiciary, an official declaration of guilt against the plaintiff, entailing judicial authorization of the criminal charge and direction for punishment.13 The independence of the court is crucial, highlighting the importance of Separation of Powers. The court is the political institution responsible for examining the justification put forth by the executive in its request for conviction.

The broad function of the criminal court encompasses ensuring the legitimacy of the verdict it produces, and this hinges on the process by which the outcome was reached and the quality of interaction between the state and accused.14 This is why liberal principles need to be reflected in the common law criminal proceedings, and why due process in trials is important not just to bring criminals to justice but also to do justice to the accused.

THE VALUE OF LIBERTY The instrumental value of the liberal features of a trial is in legitimising the criminal courts’ powers to hear criminal cases, make findings, issue verdicts and mete out punishments.15 Habermas defines legitimacy as a situation where ‘there are good arguments for a political order’s claim to be recognised as right and just; a legitimate order deserves recognition. Legitimacy means a political order’s worthiness to be recognized’.16 This also captures the substance of the maxim, “justice must not only be done, but must also be seen to be done”.

The legitimacy of a verdict and a claim to recognition will be eroded if it is a product of an undisclosed process, calling for blind trust rather than transparency and reasoned acceptance.

As Lord Phillips observed in Home Secretary v AF,17 ‘if the wider public is to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.’

As Ho proposes, due process or fair trial is a necessary but not sufficient condition for a verdict to be authoritative.18 Yet Resnick raises a proposition: why should we consider an outcome unjust simply because it has not been achieved by means of due 11 Ho (n2) 89 12 Ibid 13 Ibid 14 Ibid 15 Raymond Geuss, ‘History and Illusion in Politics’ (Cambridge University Press, 2001) 31 16 Jürgen Habermas, ‘Communication and the Evolution of Society’ (Beacon Press, 1st ed, 1979) 178 17 [No 3] [2009] 3 WLR 74 [63] 18 Ho (n2) 102

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process?19 A prosecution that relies on a confession obtained from an accused tortured by the police to find the accused guilty is said to not have received a fair trial. Yet, how does not having a fair trial equate to an unjust conviction?

Essentially, the failure of due process is in itself a wrong;20 it is not wrong simply because it increases the risk of injustice in the outcome. It is also morally contempt for two reasons.

Firstly, the conviction would not have been publicly demonstrated to be deserved. The evidence adduced fails to provide sufficient reason for the acceptance of a verdict by the accused as a due punishment for his actions. The lack of due process is thus of itself a form of political injustice, since the state has failed to show adequate justification for the condemnation of a suspect.21 The failing of the state’s duty of accountability is independent of the accuracy of the verdict and is immaterial whether the suspect did commit the crime in fact.

Secondly, whether or not the outcome of a trial is just is not merely limited to the results of the verdict. A just outcome also encompasses the communicative function and the acceptance of the verdict by the person convicted.22 Undue process fails the educative purpose of the trial to engage with the accused to see the wrong he or she has done.23 Hence, if the trial unfairly conducted, the person convicted is less likely to accept the verdict that he or she has committed a wrong, failing its communicative function. An unfair trial will likely erode the spirit of the dialogue and the court loses its moral authority to condemn the accused.

Police officers, prosecutors and judges are humans as well, and are thus subject to morality. Justice, fairness and compassion are values that guide our moral compasses and we must accord suspects with the equal respect, dignity and empathy characteristic of due process. After all, a suspect cannot be deemed a guilty criminal unless proven so.

MORAL ARGUMENTS IN SINGAPORE There exist moral arguments against the utilitarian system in Singapore. The unofficial value judgment in Singapore proposes that if an innocent person might be caught, the projected gains in crime prevention can still outweigh the cost of that eventuality.

Moral discourse in Singapore does not feature very prominently in official decision making in the context of criminal justice.24 Instead, a rigid cost-benefit analysis is always applied in every proposed measure25 and where the benefit outweighs the cost, there is sufficient justification. Hor proposes that Singapore’s criminal justice system appeals to Packer’s “crime control” model26 and makes this model prescriptive. The judicial role is minimised because of inefficiency, and instead the executive and administrative role of the police and prosecutor is maximised.27 The system is ultimately governed by a “stark utilitarian calculus”28 that is willing to trade in respect for human rights for better 19 David Resnick, ‘Due Process and Procedural Justice’ in J Roland Pennock and John W Chapman (eds), Due Process (New York University Press, 1977) 206, 207.

20 Ho (n2) 103 21 Ibid 22 Ibid 23 RA Duff, ‘Trials and Punishments’ (Cambridge University Press, 1st ed, 1986) 116 24 Michael Hor, ‘Singapore’s Innovations to Due Process’, (2001) 12 Criminal Law Forum 25 25 Ibid 26 HL Packer, ‘Two Models of the Criminal Process’(1964) University of Pennsylvania Law Review 1 27 Hor (n24) 28 28 Ibid

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crime control and reducing inefficiency of time-consuming trial processes for efficiency of administrative decisions.

Yet this model clearly overlooks the concept of moral absolutism, which is the ethical view that particular actions are intrinsically right or wrong. Some acts are normatively morally defunct, even if there are valid justifications in the eyes of the system. For instance, the use of torture, no matter how efficacious, would be considered by international standards as illegitimate. It is a wrong in itself to torture a terrorist suspect, no matter the potential gains in information that could save thousands of lives. While it is highly debateable whether Singapore’s utilitarian approach to criminal justice is right or wrong, it is argued that we cannot be entirely blind to such moral arguments in our attempt to reform the criminal justice system.

This is especially so where the weakness of pure moral arguments in Singapore seem to be attributed to our cultural tradition.29 In fact, the government of Singapore inherited a largely “amoral”30 population from the British and could appeal to utilitarian ends without needing to deal with moral objections in the wake of communist insurgency and British withdrawal. 31Yet today’s population and demographic shift forces us to examine if this is still the case. With a highly educated population that focuses beyond satiation of material needs, these moral issues are no longer irrelevant. There is a cost to moral apathy, where it results in a rigidly utilitarian society is soulless, efficient, affluent, but not particularly content.32 This leads us into the need to examine the cornerstones of our criminal justice system and the direction of its reform.

THE PRESUMPTION OF INNOCENCE The Presumption of Innocence is a recognized cornerstone of the criminal justice system. Under this presumption, the Prosecution has a “duty” to prove the accused’s guilt, subject to the insanity defence and statutory exceptions.33 If there remains reasonable doubt on the whole of the case, the accused is acquitted. A person cannot be compelled to confess guilt or give evidence against himself or herself. It is for the state to produce evidence of guilt. Because of serious consequences of conviction, the state needs to prove guilt to a high standard and where reasonable doubt remains, the defendant must be given the benefit of the doubt.

In Singapore, while this presumption is the “cornerstone” of the criminal justice system, our Constitution does not explicitly recognize this presumption of innocence, unlike in other countries. In certain crimes such as drug trafficking, guilt is presumed from the act of possession. In contrast, Hong Kong explicitly protects the presumption of innocence in Article 11(1) of the HK Bill of Rights 11 and Articles 39 and 87 of HK’s Basic Law.34 Two related rights and privileges to this presumption will now be evaluated. They have been chosen due to the disparity in the lack of emphasis in Singapore and international standards.

29 Simon Tay, ‘Human Rights, Culture, and the Singapore Example’ (1996) 41 McGill Law Journal 743 30 Hor (n24) 28 31 Ibid 32 Ibid 29 33 Woolmington v. Director of Public Prosecutions, [1935] AC 462 UKHL 481.

34 Hong Kong Basic Law, Arts. 39 and 87

PRIVILEGE OF SELF-INCRIMINATION

autonomy”.48

The common law privilege against self-incrimination means that in legal proceedings, a person cannot be compelled to produce any evidence that would expose him to proceedings for an offence.35 The accused essentially has the right to resist any effort to force him to assist in his own prosecution.36 This privilege of self-incrimination is an intrinsic component of the presumption of innocence since if the accused is presumed innocent, he cannot be compelled to be a source of incriminating evidence,37 obtained by coercion or oppression against his will.

Singapore does not recognize a pre-trial right to silence. Mazlan unequivocally pronounced the absence of a constitutional or statutory recognition of the right to silence. The Criminal Procedure Code allows adverse inferences to be drawn from the accused’s silence during recording of statements49 and specifically includes this in its warning to the accused.50 The Evidence Act similarly allows “unfavourable” inferences to be drawn if a witness chooses to remain silent in response to questions pertaining to matters irrelevant to the proceedings.51

In Singapore, we do not accord strong respect for the privilege against self-incrimination. In Mazlan, it was held that there is no specific constitutional or statutory provision protection of such a privilege.38 The Evidence Act39 allows incriminating evidence, where witnesses in proceedings cannot decline to answer questions just because these answers would incriminate them and expose them to civil penalties.40 The Criminal Code also explicitly departs from the accused’s “entitlement to withhold relevant information before trial.”41 Moreover, Singapore’s Court of Appeal has denounced the continued relevance of the historical rationale underlying the privilege against selfincrimination.42 These decisions have weakened the privilege against self-incrimination in Singapore.

At trial, Singapore allows for adverse inferences to be drawn from an accused’s silence at trial, especially if it “affects the probative value of the evidence”.52 This position is embodied in the Criminal Procedure Code.53 While the court has acknowledged that the drawing of such adverse inferences might induce the accused into testifying at trial, it has categorically stated that this does not equate to a compulsion to testify that offends the presumption of innocence.54

This runs contrary to the approaches of other jurisdictions. For example, the US protects the privilege against self-incrimination as a constitutional right under the Fifth Amendment to the US Constitution. In Miranda,43 the US Supreme Court held that the police must inform a person before the use of custodial interrogation of his right to remain silent. The privilege against self-incrimination is also an implicit component of the right to fair trial in Art 6 of the European Convention of Human Rights.44 Additionally, the increasing international emphasis on this privilege in other human rights documents such as the International Convention on Civil and Political Rights45 seems to indicate the value of this privilege that Singapore seems to underestimate.

RIGHT TO SILENCE Closely related to the privilege against self-incrimination is the right to silence, prohibiting the drawing of adverse inferences from a person’s silence, where such silence “cannot fill in any gaps in the prosecution case”.46 It relates to the presumption of innocence since it allows adverse inferences to be drawn from an accused’s silence. This reduces the prosecution’s burden of proof significantly.47 Also, the right to silence corresponds to the presumption’s protection of the individual’s “dignity and 35 Rank Film Distributors Ltd v Video Information Centre [1982] A.C. 380 UKHL 419.

36 Michael Hor, ‘The Privilege Against Self-incrimination and Fairness to the Accused’ (1993) Singapore Journal of Legal Studies 1 35 37 Ian Dennis, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-incrimination’ (1995) Cambridge Law Journal 54, 354 38 PP v. Mazlan bin Maidun [1992] 3 S.L.R.(R.) 968 [13] 39 Evidence Act, Cap 97 (1997) (Sing.)

40 Evidence Act, § 134.

41 PP v. Mazlan bin Maidun [18] 42 PP v. Mazlan bin Maidun, [17] 43 Miranda v Arizona (1966) 384 US 436 44 Ben Emmerson QC; Professor Andrew Ashworth; Alison Macdonald, Human Rights and Criminal Justice (3rd ed Sweet and Maxwell 2012) ch 13 45 Article 14(3)(g) of the International Covenant on Civil and Political Rights 46 Weissensteiner v. The Queen (1993) 178 C.L.R. 217 (H.C.A.) (Aust.)

[24].

47 Ashworth, ‘Four Threats to the Presumption of Innocence’, 256.

However, it is argued that the distinction between “induction” and “compulsion” is absolutely arbitrary. The clear consequence of the non-recognition of privilege of silence does tip the scale in favour of the prosecution, increasing the chances of a testimony of the accused at trial.

The presumption of innocence, assessed against the privilege of self-incrimination and its associated rights, is undisputedly weakened in Singapore. While a suspect who is being questioned has a right to exercise the privilege of against self-incrimination, this right is weak in substance.

ADVERSE INFERENCE Firstly, he risks incurring an evidential disadvantage at trial if he exercises this right. A trial judge may draw an adverse inference against the accused from his failure to mention a fact in his defence when questioned under s22 of the Criminal Procedure Code.

In Kwek Seow Hock,55 a drug trafficking case, the Court of Appeal ruled that an adverse inference may be drawn from the accused’s failure to mention in his s22 statements that he intended to keep half of the quantity of diamorphine in his possession for personal consumption. During questioning, s22 empowers the police to take statements in the course of the investigation. In 2010, the wording of s22 was changed to render it explicit that post-charge questioning is permitted. This is unaligned with the position in other countries, including England and Wales, where the police may not interview a person about an offence once they have charged him with the offence or informed him that he may be prosecuted for it.56 An accused who has not been served with the charge might not know what “the police are investigating” and “what they are going to use against him”. This is further complicated by the fact that it is now common practice for investigating officers to continue taking further statements from the accused under s22 after they have charged him with an offence under s23. Ho 48 Ibid 249 49 Criminal Procedure Code, § 261.

50 Ibid, s 23.

51 Evidence Act, § 150(2)(d).

52 Took Leng How v. PP, [43].

53 Criminal Procedure Code, § 230(1)(m) and 261.

54 Haw Tua Tau v. PP, [29].

55 Kwek Seow Hock v Public Prosecutor [2011] 3 SLR 157 56 Police and Criminal Evidence Act 1984 (c60) (UK), Code C

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argues that it seems premature to charge a person when there is evidently still a need for further questioning and investigation.57 In all reported cases, the investigating officers seem to obtain statements from the accused under s22 after they already proceeded against him under s23 and without re-cautioning him on the risk of an adverse inference.58 Pinsler even argues that it is unfair to draw an adverse inference without a warning, or reminder, that it may be drawn.59 Perhaps the England and Wales model could be seen as instructive: there, the suspect needs to be re-cautioned after each break in questioning.60 This would significantly strengthen the privilege of against selfincrimination.

RIGHT TO BE INFORMED Secondly, the police do not need to inform the accused of his rights. This weakens the privilege considerably. In Mazlan,61 it was held that the police do not need to inform the person whom they question under s22 of his privilege against selfincrimination and this privilege is not a constitutional right or a fundamental principle of natural justice. Also, the fact that they did not inform him of the privilege prior to taking the statement from him under s22 does not of itself make the statement inadmissible at trial.

Yet recently, during a consultation exercise on the draft Criminal Procedure Code Bill 2009, the Law Society called for the introduction of a legal requirement that the police inform the suspect whom they wished to question under s22 of his privilege against self-incrimination.62 The Law Society also called for the caution prescribed in s23 to include a reference to the right to silence. These suggestions, as argued by Ho, were far from radical and if implemented, would have merely brought our law back in line with international standards.

A sole comforting qualifier was one Member of Parliament who supported the recommendation of the Law Society during the second reading of the bill.63 The call for change was to no avail and the Government retained the status quo. If anything, the “strengthening” of these rights has been extremely sluggish, and should fail to match up to international standards. It is argued that these are reasonable, moderate improvements towards a greater protection of the rights of the accused and should be adopted at the soonest.

CONCLUSION Singapore is renowned for its tough stance on crime, justifying it with a need for strong deterrence effect and low crime rate.

Yet, this cannot be done at the expense of justice. Justice cannot solely be viewed through lens to punish criminals, but must also be seen to be done and be accountable to the accused.

The balance in Singapore is far too skewed in favour of the prosecution. As argued above, it is of paramount importance that liberal principles are espoused in criminal courts and should be embodied in our legal system. The right to silence and privilege of self-incrimination would be a good starting point towards international standards of procedural fairness and justice for the

57 Ho Hock Lai, ‘The Privilege Against Self-Incrimination and Right of Access to a Lawyer’ (2013) 25 SAcLJ 832 58 Ibid 833 59 Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) 60 Police and Criminal Evidence Act 1984 (c60) (UK), Code C 61 PP v. Mazlan bin Maidun [1992] 3 S.L.R.(R.) 968 62 Report of the Council of the Law Society on the Draft Criminal Procedure Code Bill 2009 63 Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87(3) at col 442

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accused. While Singapore is not a police state, we will always need safeguards against such potential possibilities. After all, who will guard the guardians?

DOES DRUG TRAFFICKING DESERVE THE MANDATORY NOOSE?

By Tan Wen Shan

Earlier this year, Future Music Festiva Asia 2015 was cancelled due to serious concerns by police over potential drug abuse at the event. The festival’s three-year run in Kuala Lumpur was allegedly marred by drug problems concert organisers had to pull the plug on the third day of the event last year after six Malaysians purportedly died of drug overdose and another 16 people were hospitalised for drug-related reasons.1 Is Singapore overreacting and being unreasonable to associate drug use to a particular event? Regardless of the answer, this episode is a good illustration into Singapore’s hard-line stance against drug abuse.

Unsurprisingly, Singapore is renowned for its draconian drug laws. Although Amnesty International has condemned aspects of the policy, the government has frequently argued vehemently that the ends justify the means, with the South East Asian city state boasting one of the lowest instances of illegal drug use in the world.

Notably, Minister for Foreign Affairs K Shammugan has refuted that argument put forth by activists that the capital punishment for drug traffickers stems from a desire for vengeance. He pointed out that drug traffickers themselves impose immense penalties, including death, on their victims. Drug use kills between 100,000 and 250,000 globally, he noted, saying, “For those who ask for whom the death penalty can be a deterrent, I say to them, come and see for yourself in Singapore, and compare the region and the rest of the world.”2 Set against this political climate, this article aims to explain the amendments to the Misuse of Drugs Act in November 2012 and evaluate its merits and demerits. It also aims to analyse if the main purpose of the legislation regarding the death penalty should be solely to deter drug activity. It is argued that the mechanism of issuing a certificate of substantive assistance is an effective and good preliminary step towards future potential developments towards greater leniency of Singapore’s drug laws. However, much more can and should still be done, as the amendment has its many flaws.

The current system of mandatory death penalty rests upon the inconclusive assumption that the implementation of a death penalty is correlated to a low drug activity. Also, moral ethics should be considered when differentiating criminals based on their instrumental value to the police through the use of this certificate. Moreover, the absolute prosecutorial discretion criteria of the Public Prosecutor needs to be questioned and should instead be left as a matter of law to the judge for accountability reasons. While the amendment takes a step in the right direction towards a better balance of deterrence and curbing manifest injustice to criminals, there is much more to be done and room for greater reform in protection of human rights and constitutional principles.

1. BACKGROUND Capital punishment is legal in Singapore. Singapore had the second highest per-capita execution rate in the world between 1994 and 1999, estimated by the United Nations to be 13.83 executions annually per hundred thousand of population during that period.3 Singapore has practised capital punishment since it was a British Colony and became independent before the United Kingdom abolished capital punishment in 1965. Under the Penal Code, the commission of the following offences may result in the death penalty: murder, attempted murder by a prisoner serving a life sentence, drug trafficking, unlawful discharge of firearms (even if no one is 1 Xue Jianyue “Future Music Festival Asia in doubt as police cite drug concerns” Channel News Asia (5 Mar 2015) 2 “In death penalty debate, consider larger interest of society: Shanmugam” Today Online (26 Sept 2014) 3 3UNODC.org (page 18) [68] image: WritersForensicsBlog.com

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injured), and rape.

Singapore’s procedure for hanging condemned individuals is influenced by the methods practised previously in Great Britain.

Capital punishment cases are heard by a single judge in the High Court of Singapore. After conviction and sentencing, the sentenced has one appeal to the Court of Appeal of Singapore. If the appeal fails, the final recourse is rested with the President of Singapore, who has the power to grant clemency on the advice of the Cabinet. Yet successful clemency applications are thought to be rare. Since 1965, the President’s clemency has only been granted six times and the last one was in May 1998, where Mathavakannan Kalimuthu received a pardon from President Ong Teng Cheong.

This controversial law contributes to the nation’s reputation for its strict stance on crime and low priority in upholding human rights. Its stringent laws regarding drugs have been explained by the need for deterrence towards drug abuse and drug mules from using Singapore as a transit point for smuggling.

In a 2010 interview with a UK newspaper Michael Teo, Singapore’s High Commissioner to the Court of St. James’s, launched a robust defence of Singapore’s drug laws: “According to the 2008 World Drug Report by the United Nations office on drugs and crime 8.2% of the UK population are cannabis abusers; in Singapore it is 0.005%. For ecstasy, the figures are 1.8% for the UK and 0.003% for Singapore; and for opiates – such as heroin, opium and morphine – 0.9% for the UK and 0.005% for Singapore. We do not have traffickers pushing drugs openly in the streets, nor do we need to run needle exchange centres.”4 However, it has often been disputed as to whether the death penalty is an effective balance between crime control and violation of sanctity of human life. The United Nations Office on Drugs and Crime notes that Singapore remains a transit destination for drug traffickers in Asia, drug seizures continue to increase and heroin drug use within Singapore is continuing to rise.5 In light of criticisms, Singapore has reviewed their draconian drug laws regarding the mandatory death penalty in the Misuse of Drugs Act in 2012.

2. SUBSTANTIVE AMENDMENT OF MISUSE OF DRUGS ACT In November 2012, after much parliamentary debate, the government amended the Misuse of Drugs Act. When an accused is convicted of trafficking, importing or exporting drugs above a certain quantity, the Court is granted discretion to sentence the accused to life imprisonment with caning for drug offenders if the accused satisfied the conditions to be granted a Certificate of Substantive Assistance or suffered from such an abnormality of mind that it substantially impaired his mental responsibility for committing the offence.

3. CERTIFICATE OF SUBSTANTIVE ASSISTANCE The relevant portion of the law lies in s33B (1) and (2) of the Misuse of Drugs Act. In short, s33B (1) empowers the court with the option of sentencing the convict to imprisonment for 4 James Goyder, “Drug Addiction and Rehabilitation in Draconian Singapore” The Independent (23 May 2011) 5 UNODC Laboratory and Scientific Section Portals, “The Global Smart Programme: Singapore” <https://www.unodc.org/LSS/Page/NPS/GlobalSmart> last assessed 8 July 2015

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life. In order to do so, however, the convict must satisfy two conditions provided in s33B (2), namely: (a) The person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above; (b) The Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities within or outside Singapore.

The first instance of a serving inmate on the death row to be issued the certificate is Yong Vui Kong. He was caught in 2007 in possession of 47.27g of heroin near the Meritus Mandarin Hotel by Central Narcotics Bureau officers. In 2009, Yong was sentenced by Justice Choo Han Teck to suffer death under s5(1a) of the Misuse of Drugs Act (Cap 185). In September 2013, the Attorney General’s Chambers released a media statement stating that “the Public Prosecutor will certify to the High Court that Yong had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within and outside Singapore.”

Two main issues emerge, which this article will discuss.

Firstly, the determinative factor whether a convict has rendered substantive assistance is the value of the information he is able to provide. Substantive assistance to the Bureau to disrupt drug trafficking activities would include the provision of information leading to the arrest or detention or prosecution of person involved in drug activity. Information that does not enhance the effective enforcement of the provisions of the Act will not suffice.

Secondly, the issue of the certificate will be determined by the Public Prosecutor in his sole discretion. Sole discretion means that he is given complete autonomy in the decision process to issue the certificate.

4. EVALUATION OF NATURE OF SUBSTANTIVE ASSISTANCE It has been criticised that the criteria for “provision of information leading to arrest or detention or prosecution is inherently unfair and onerous to the convict.”6 Drug couriers are often on the lower rungs of the ladder in the larger hierarchy of illegal drug trade. Hence it is unrealistic for them to possess such information that would be of “substantive assistance” as leaders of these drug syndicates often take steps to restrict the flow of information to couriers.7 Moreover, revelation of such information would endanger family members and it is foolhardy to assume that the police can provide them with round-the-clock protection. As such, these stringent limits are to the detriment to the convict’s likelihood of escaping the noose.

The limitations are indeed stringent and the “substantive assistance” test is not an easy criteria to pass. However, the Singapore government tries to justify why it should not be an easy one to pass. The point of the amendment is to relax the 6 Joshua Kow, “How substantive is substantive assistance?” Singapore Law Review (31 October 2013) 7 Ibid

mandatory death penalty but that does not justify a swing towards a lenient approach towards escaping the noose. A right balance still needs to be struck between maintaining deterrence of drug activity and compassion.

Mr Christopher De Souza, MP for Holland-Bukit Timah GRC, has made the following argument: “I find it odd that so much of the debate is centred on the compassion society should have on the drug trafficker. That to me is skewed. Let us not forget who the victim here is - it is not the trafficker; it is society, it is the many families broken by drug addiction. We should have compassion for this brokenness too.

The way to do so is to maintain immensely strong and muscular measures to deter drug traffickers from targeting Singapore.

What we are debating today is not child’s play. It is very serious business. We mis-step, open the flood gates, our war on drugs falters. We cannot afford to mis-step, we cannot afford to open the flood gates.”8 This quote deserves evaluation. The reasons against the debate focusing on the compassion society should grant on the drug trafficker seems to be rather harsh. While it is true that the main victims are the families of drug abusers, drug traffickers are equally important victims of the drug trade too. Many of them are exploited by drug kingpins, especially due to a lack of education and vulnerability. It is perfectly legitimate for the law to balance and consider the plight of the accused as well and whether it is fair to them.

Additionally, it must be noted that drug addiction is a chronic, often relapsing, brain disease that causes compulsive drug seeking and use, despite harmful consequences to the addicted individual and to those around him or her. It is a health disorder that arises from the exposure to drugs in persons with these psycho-biological vulnerabilities. Such an understanding of drug dependence suggests that punishment is not the appropriate response to persons who are dependent on drugs.9 Indeed, imprisonment can be counterproductive to recovery in vulnerable individuals who have already been “punished” by the adverse experiences of their childhood and adolescence, and who may already be neurologically and psychologically vulnerable.10 Education, drug dependence treatment, aftercare, rehabilitation and social reintegration can be effective alternatives to criminal justice sanctions for drug-related crime as treatment has been shown to reduce drug-related crime more than incarceration.11 Studies on imprisonment have found no difference in the likelihood of offenders re-offending among those who serve sentences in prison and those who serve in the community.

Nations such as Luxembourg and Portugal do not consider the possession of select drugs for personal use a crime. Other nations, such as the UK, employ methods to avoid the punishment of drug users when they are found in possession of illicit drugs in limited quantities.

Moreover, there is no clear correlation or proof between extreme deterrence measures and the reduction of drug trafficking. Just because a harsh measure produces result does not mean that more liberty-friendly alternatives cannot produce the same effect.

8 Imelda Saad, “MPs debate changes to Misuse of Drugs Act” Channel News Asia (12 Nov 2012) 9 Chandler et al., 2009, Dackis and O’Brien, 2005, McLellan et al., 2000 10 Neale and Saville, 2004 11 Gerstein and Harwood, 1990, Guydish et al., 2001

The other issue to be addressed is if the sole deciding factor should be how much substantive assistance the information provides. Moreover, CNB officers may not choose to recognise or value the convict’s assistance. It is entirely determined by chance and discretion of others, rather than how heinous or morally repulsive the crimes are. It has been put forth that there is no justified reasoning for two equally culpable convicts who are sentenced to death or life imprisonment respectively, just because one provided more substantive information, which is a factor that neither convicts are able to control.

However, the government has argued that the purpose of the certificate mechanism was developed with “a view to assist in Singapore’s broader enforcement efforts to keep drugs out of Singapore”, as put by Deputy Prime Minister Teo Chee Hean.12 Going back to the purpose of the amendment, its main objective is not leniency, but rather on gaining additional information to keep drugs out of Singapore. The information provided is used to assist to dismantle drug syndicates or facilitate the arrest or prosecution of syndicate members, particularly those higher up in the syndicates. As such, whilst it may seem merciless to distinguish a convict on row from one serving life imprisonment on the value of their information, it does make sense to the extent if the only purpose of the act is ultimately to prevent future drug activity.

On top of that, the need for the criteria to remain stringent is pertinent. As argued by Dr Intan Azura Mokhtar, MP for Ang Mo Kio GRC: “I am also concerned that the alternative sentence of a life imprisonment instead of the death sentence may be wrongly perceived by the general public, especially among our young or unscrupulous drug traffickers, that they can be opportunistic when it comes to drug trafficking because of the amendments to this Act. The less informed may think that the drug trafficking offence has become less serious while the opportunists may think that they can get away with a less harsh sentence.

Some may think that if they are being classified as a young person below the age of 21 or a vulnerable person when caught as a drug courier, they can claim to be simply a courier, cooperate with the Central Narcotics Bureau, and be given a life imprisonment instead of the death sentence, which they hope can be later reduced to several years’ imprisonment due to good behaviour.”13 Yet should the main purpose of deterrence outweigh and overshadow manifest injustice to criminals?

5. MAIN PURPOSE OF THE LEGISLATION It is important to evaluate if the stance of the government about the main goal of the legislation should be pure deterrence or should there be a good balance between crime prevention and manifest disadvantage to the traffickers through a harsh penalty system.

A) Effectiveness of deterrence Much debate has been ongoing about whether a death penalty is the most effective method in prevention of crime, worldwide.

Researchers have long used repeated cross sectional observations 12 “Drug trafficker escapes death sentence under amended Misuse of Drugs Act” Channel News Asia (11 April 2013) 13 Imelda Saad, “MPs debate changes to Misuse of Drugs Act” Channel News Asia (12 Nov 2012)

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of homicide rates and deterrent effect of use of death penalty statutes but empirical literature has failed to achieve consensus since the outcomes of counterfactual policies are observable.14 Data alone thus cannot identify the deterrent effect of capital punishment.

Professor Roger Hood of Oxford University, also points out that despite oft-repeated claims of effective deterrence made by retentionist states, there is no statistical evidence to support this contention. Even if capital punishment was proven to be an effective deterrent, the death penalty for drugs would still merit critical examination under a country’s human rights obligations as it is not permissible to inflict penalties that violate international human rights law, regardless of their deterrent effects.15 There is also little evidence that the death penalty acts as a successful deterrence against crime. Researchers observed that Hong Kong experienced a drop in homicide rates in the 35 years after 1973, despite having abolished the death penalty in 1966. Similarly, another report by a committee of scientist from the US National Research Council who examined research on the death penalty across the past 35 years showed that it was “not informative about whether capital punishment decreases, increases, or has no effect” on crime rates. 16 Even with the harsh laws, drug-related crime statistics in Singapore remain high. According to the European Institute for Crime Prevention and Control in 2010, Singapore’s drugrelated crime rate is far worse than other countries such as Costa Rica and Turkey. The number of drugs seizures in Singapore has continued to increase in recent years. The Central Narcotics Bureau reported record seizures in 2012. The estimated street value of the drugs seized was S$18.3 million ($14.7 million), 14 percent higher than the S$16 million in 2011.17 The relationship between capital punishment and lowered crime rates is thus inconclusive.

B) Moral ethics in criminal law Kant proclaims that rational human beings should be treated as an end in themselves and not as a means to something else. The fact that we are human has value in itself. The Humanity formula under the standard of rationality dubbed, the “Categorical Imperative”,18 states that we should never act in a way that treats Humanity as a means only but always as an end in itself. It engages in the pervasive use of Humanity in such a way that we treat it as a mere means to our ends.

In this same respect, we need to examine if two equally culpable convicts who are sentenced to death or life imprisonment respectively should be distinguished just because one provided more substantive information. This seems to be conflicting with Kant’s Humanity formula and utilising a convict’s information as a means to prevention of drug activity, without regard to his end. An absolutist limit should be considered to constrain this highly utilitarian approach which is willing to sacrifice unethical behaviour for the “greater good”, whose effectiveness in crime prevention seems to be empirically inconclusive.

14 Charles F. Manski, John V. Pepper, “Deterrence and the Death Penalty: Partial Identification Analysis Using Repeated Cross Sections” NBER Working Paper No. 17455, Published September 2011 15 IHRA Death Penalty Report 2007, pp 12-14 16 Jeraldine Phneah, “Singapore and the Death Penalty” The Diplomat (20 Nov 2013) 17 Ibid 18 Kant’s Moral Philosphy, Stanford Encyclopedia of Philosophy < http://plato.stanford.edu/entries/kant-moral/> accessed 8 July 2015

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6. COMPARISON WITH OTHER COUNTRIES In the recent decision of Kho Jabing v Public Prosecutor,19 the Court of Appeal (CA) made some guidelines to judges on the discretionary death penalty in murder cases. The CA examined foreign decisions from the courts in India, the Caribbean and the United States where the death penalty was reserved for the worst cases or the “rarest of rare” cases.

It was, however, not persuaded to adopt this test. The CA held that the “rarest of the rare” principle was inappropriate for Singapore as it would “artificially confine and sequester the death penalty to the narrowest of regions and to restrict the imposition of the death penalty based on whether the actions of the offender are ‘rare’ in comparison with other offenders” (at [41]).

Clearly, the CA was not supportive of any notion of a default sentence of life imprisonment that a judge must start with, which a “worst case” approach or test might suggest.

7. EVALUATION OF PROSECUTORIAL DISCRETION Moreover, it is argued that there lies an issue with the amendment in that it grants too large a degree of prosecutorial discretion to the Public Prosecutor. Regardless of how substantive a convict’s assistance to the CNB may be, the full, independent discretion of the Public Prosecutor in the issuance of the certificate itself may still possibly stand in the way of a convict’s right to life. As such, Member of Parliament for Aljunied, Ms Sylvia Lim, argues 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.”20 The worrisome aspect is the lack of transparency or accountability of the Public Prosecutor, who becomes the ultimate judge of substantive cooperation. At present, the Public Prosecutor holds ‘veto’ power over the issuance of the certificate. This is a marked departure from what ought to be within the power of an independent judge who is obliged also to give reasons for his decision. The Public Prosecutor’s decision remains unaccountable and opaque. In imposing a mandatory death penalty, giving the Public Prosecutor full discretion in issuing the certificate seems to make little difference from the law prior to the amendment. This seems to undermine the underlying constitutional principle of Separation of Powers, requiring adequate checks and balances for wide discretionary powers.

Instead, it is suggested that the discretion should not be granted solely to the Public Prosecutor. Instead, the decision should be a matter of law for the judge, allowing for considerations such as willingness of convict to cooperate and severity of crime to be guidelines for the discretion to be exercised. In this respect, the judge is accountable through reason-giving and the discretion is exercised with a structure with a fixed set of considerations. If Prosecutorial Discretion is still to be in place, a mechanism to enforce accountability must be put in place.

8. CONCLUSION The amendments of the Misuse of Drugs Act are calculated baby steps towards tempering justice with mercy but a better balance can be struck to deter further drug activity and preventing manifest injustice for the criminals. Much more can still be done legislatively and hopefully this step in the right direction would serve as an impetus for future reforms towards human rights protection and moral ethical practice of criminal law.

19 20

[2015] SGCA 1 Speech on Misuse of Drugs Amendment Bill, MP Sylvia Lim

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It is not all about the prestige and physical size of a firm when deciding on a law firm to train with. Rather and above all, it is the quality of the training provided by the law firm and the kind of culture and values that it holds that would help you to grow and excel in your legal career.

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RETHINKING MENTAL DISORDERS

By Daniel Lee

“We serial killers are your sons, we are your husbands, we are everywhere. And there will be more of your children dead tomorrow.” Ted Bundy’s infamous words before he was executed in 1989 provide a chilling reminder of why psychopaths and mentally disordered offenders hold such sway in our perceptions of crime and criminality. The unpredictability of their behaviour, general aggressiveness and apathy towards social norms pose unique challenges to criminal justice systems around the world today. Unfortunately, the general response towards mentally disordered offenders has been one of prevention: of locking them up and throwing away the key.

2009, 14.5% and 31% of the 20,000 men and women entering five local prisons had serious mental illnesses, defined as the presence of one or more of bipolar disorder, schizophrenia and major depression. In addition, a survey done by the Bureau of Justice Statistics released in 2006 reported that more than half of all prison and jail inmates had a mental health problem.1 While figures on mentally disordered offenders in Singapore are not publicly available, the Singapore Prison Service has reported that they are currently experiencing an increase in the number of prisoners with mental health problems.2 With that context in mind, let us next examine the current state of the law towards mentally disordered offenders.

With an increasing number of mentally disordered offenders within our criminal justice system, perhaps it is time to examine how we think about mental disorder and crime. This article will seek to critically examine Singapore’s position towards mentally disordered offenders and it is argued that the current state of the law towards mentally disordered offenders is unsatisfactory at its most fundamental level for being premised on an incomplete definition of insanity and there is still much to learn about the subject from a criminological perspective.

THE DEFENCE OF ‘UNSOUNDNESS OF MIND’

SEVERITY OF THE PROBLEM There has been an observable trend worldwide that offenders have higher rates of mental illness than the general community.

In the USA, according to a Justice Centre study released in

The defence of ‘unsoundness of mind’ is stated in section 84 of the Penal Code, that ‘nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law’.3 The defence is essentially borrowed from the English Common 1 Bureau of Justice Statistics, US Department of Justice, Mental Health Problems of Prison and Jail Inmates (2006) <http://www.bjs.gov/content/pub/pdf/mhppji.pdf> accessed 10 March 2015 2 Neil Morgan and Irene Morgan, Final Report 26th Asian and Pacific Conference of Correctional Administrators (2006) <http://www.apcca.org/ uploads/26th_APCCA_Conference_Report.pdf> accessed 10 March 2015 3 s 84 Penal Code (Cap 224, 2008 Rev Ed)

Left to Right: Multiple Personality Disorder, Anorexia Nervosa, Bipolar Disorder, Gender Identity Disorder, Studdering, Pica, Attention Deficit Hyperactivity Disorder, Schizophrenia, Pyromania. Image: Pinterest

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Law position on Insanity, also known as the M’Naghten Rules, which states that “[…] to establish a defence on the ground of insanity, it must clearly be proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from his disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”.4 THE LAW OF INSANITY Underlying the s84 defence is the assumption that mental disorders are solely problems with one’s cognitive capacity to reason. However, it will be argued that this method of thinking is archaic, causes a host of problems in the law and should be done away with in favour of a more holistic and modern definition of mental disorder.

The s84 defence’s sole emphasis on cognitive capacity as the definition of madness can be seen both from the wording of the test itself and the Singapore court’s interpretation of the phrase “either wrong or contrary to law”.

Firstly, the test only works if one is “incapable of knowing”. This use of the word “knowing” points towards an emphasis on one’s ability to understand or “be aware or informed”, illustrating the emphasis of the statute on one’s cognitive ability to reason.

Secondly, the interpretation of the phrase “either wrong or contrary to law” by the Singapore courts. There are three competing interpretations: That “wrong” is synonymous with “legal wrong” or an action contrary to the law. This is known as the exegetical view and is the position adopted by English law in the cases of R v. Windle5 and R v. Johnson.6 Another interpretation is that “wrong” has two limbs, ‘moral wrongness’ and “legal wrongness”, and the accused is required to show that his or her unsoundness of mind rendered him or her incapable of knowing that the act was wrong in a moral sense and that it was contrary to law (emphasis added). This is the “conjunctive view” that was favoured by the Singapore courts in Public Prosecutor v.

Rozman bin Jusoh.7 Lastly is the view that the accused need only prove that he or she was incapable of knowing one of the limbs to succeed on the defence of unsoundness of mind.

Though the Singapore courts have adopted a conjunctive approach, it is argued that their approach is no different from the exegetical view since knowledge that the act was contrary to the law will deprive the accused of the s84 defence even if he did not know that it was morally wrong. For example in Rozman the accused was charged with trafficking cannabis and sought to raise the s84 defence on grounds that his subnormal intellect rendered him incapable of knowing that his actions were morally wrong or wrong in law. The defence was denied to him despite medical opinion being equivocal as to whether he was capable of discerning right from wrong on grounds that the accused clearly knew it was contrary to law to sell drugs and the consequences of doing so. This illustrates how the conjunctive interpretation of the Singapore’s courts of the s84 defence effectively subsumes ‘moral wrong’ under ‘legal wrong’ and brings the Singapore approach to be in line with the English position.

THE PROBLEM OF INSANITY Focusing exclusively on cognitive ability as an indicator of madness is flawed for three reasons. Firstly, this definition renders the law out of date in relation to modern medical knowledge. Secondly, a comparative study with other common 4 CJ) 5 6 7

M’Naghten’s Case, [1843] 10 C & F 200 (HL) 722-23 (Lord Tindal [1952] 2 QB 826 [2007] EWCA Crim 1978 [1995] 2 SLR(R) 879

law systems illustrates that the English and Singaporean courts are alone in retaining a cognitive definition of madness. Thirdly, the arguments in principle presented by the English courts for an exclusively cognitive approach are unsound.

THE SCIENCE OF INSANITY It is clear that the terms ‘insanity’, ‘unsoundness of mind’ and ‘mental disorder’ refer to complex medical conditions that the law still does not truly understand. Peay describes the term accurately as one of “acute terminological inexactitude”.8 The Penal Code itself is silent on its meaning and we must look to English law for a possible explanation. However even there we run into semantic circles: section 1 of the Mental Health Act 1983 (Amended) defines mental disorder as “any disorder or disability of the mind”, a definition so broad that it could include the world at large, while the M’Naghten Rules unhelpfully describes it as “[...] labouring under such defect of reason, from disease of the mind”.9 One thing that is clear from the above is the law’s unyielding emphasis on the ability or capacity of an individual for cognitive reasoning as the yardstick of sanity.

However, it is argued this emphasis is archaic and misplaced by today’s medical knowledge.

The physician James Cowles Prichard first developed the idea that insanity is not restricted to cognitive defects in 1837 when he coined the term “moral insanity”.10 Prichard criticised the exclusively cognitive conception of madness on the grounds that it was too narrow for restricting the concept to disturbances of reason and failed to consider cases in which only feelings, affections or habits were disordered. Within this dominant conception of madness, persons who were emotionally unstable, morally apathetic or had a propensity for violent bouts of rage would be regarded as sane if their capacity of understanding was not seriously impaired. The potentially absurd results of the ‘intellectualistic’ outlook of madness can be seen from the case of Suttcliffe,11 more commonly referred to as the Yorkshire ripper.

In Suttcliffe, the accused took it as his divinely ordained mission to kill prostitutes. Though he was schizophrenic to a severe degree and arguably not capable of knowing that his actions were morally wrong, he was still found to be quite sane within the terms of the English law of insanity since he knew that his actions were contrary to law.

Prichard gave moral insanity an expansive definition, describing it as situations where one’s ‘’[...] intellectual faculties appear to have sustained little or no injury, while the disorder is manifested principally or alone, in the state of the feelings, temper or habits.

In cases of this description the moral and active principles of the mind are strangely perverted and depraved; the power of self-government is lost or greatly impaired; and the individual is found to be incapable of... conducting himself with decency and propriety in the business of life”.12 However, if such knowledge about the diversity of mental disorders was already present in the 1800s, it certainly begs the question why our criminal justice system is still preoccupied with cognitive defects as the definition of insanity 200 years later.

INSANITY AROUND THE WORLD A comparative study with other common law jurisdictions illustrates that it is only the English and Singaporean courts that retain a preoccupation with cognitive defects. For example,

8 Jill Peay, ‘Mentally disordered offenders, mental health and crime’ in Maguire, Morgan and Reiner (eds), The Oxford Handbook of Criminology (Oxford University Press, London 2012) 9 M’Naghten (n 4) 10 Prichard, JC (1837) A Treatise on Insanity and Other Disorders Affecting the Mind: Haswell, Barrington and Haswell, Philadelphia (reprinted in 1973 by Arno Press, New York) 11 The Times, 30 April 1980 12 Prichard (n 10)

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section 7.3 of the Australian Criminal Code 1995 provides that “A person will not be criminally responsible for an offence if... the person was suffering from a mental impairment that had the effect that the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)” [emphasis added]. Similarly, section 23(2)(b) of the New Zealand Criminal Crimes Act 1961 only requires that the accused be incapable of “knowing that the act or omission was morally wrong” and sets out no requirement of being incapable of understanding ‘legal wrongness’. The Canadian Supreme Court in R v. Chaulk13 has also held that an individual who was incapable of knowing that an act was morally wrong due to a mental disorder is not criminally responsible even if he or she was capable knowing that the act was legally wrong.

ARGUMENTS BY THE ENGLISH COURTS The English courts were presented with an opportunity to take the same step as the other common law jurisdictions in R v. Johnson,14 but rejected it for three reasons. Firstly, the court stated that to allow “moral wrongness” as a defence would create inconsistencies with the M’Naghten Rules. Secondly, it would create uncertainty, or as Lord Chief Justice Goddard in R v.

Windle stated, “[create] some vague meaning which may vary according to the opinion of different persons whether a particular act might or might not be justified”.15 Thirdly, the statement of the law was “unequivocal” and despite acknowledging that it was a “notorious area for debate”, the court dismissed it as a debate that could not properly be undertaken before the court at this level. We will now examine each of these arguments in turn.

The first argument that allowing ‘moral wrongness’ as a defence would create inconsistencies with the M’Naghten rules is, in this author’s opinion, misplaced. The M’Naghten rules only state that the accused must “not know he was doing what was wrong” and gives no clarification of whether ‘wrong’ is to be confined to ‘legal wrong’ or to include ‘moral wrong’. The Court of Appeal in Johnson merely acceded to the arguments by the court in Windle and gave no further elaboration. It is argued that while legal certainty is important, it cannot be respected to the point of rigidity in the face of what clearly is an unsatisfactory area in the criminal law. This is evidenced by both the shift in position by other common law states and the absurd decisions that have resulted from the current law. For example, a diabetic who stole cars whilst in a hyperglycaemic state in R v Hennessy 16 and an individual who suddenly and violently attacks his wife in a state of automatism due to arteriosclerosis (hardening of the arteries) in R v Kemp 17 were both allowed the defence of insanity, but a severely schizophrenic individual in R v Suttcliffe who killed prostitutes under a misconceived notion that it was his divine mission to do did not.

The second argument by the English courts, however, bears more weight. Lord Chief Justice Goddard was right in emphasising that the law cannot have a “vague meaning which may vary according to the opinion of different persons” and that “courts of law can only distinguish between that which is in accordance with law and that which is contrary to law”.18 Certainty in the law is to be cherished, especially in the field of criminal law which bears the responsibility of protecting society from those who would do harm to it and of ensuring that the rights of those convicted to incarceration are fairly and justly respected.

There must be a clear definition as to when a state can limit the 13 [1990] 62 CCC (3d) 193, 230 (Lamer CJC) 14 Public Prosecutor v. Rozman bin Jusoh (n 7) 15 Windle (n 5) 16 [1989] 2 All ER 9 (CA) 17 [1957] 1 QB 399 18 ibid 833

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freedoms of an individual.

It is conceded that this is a powerful argument for the retaining of the law in its current state, however two responses will be attempted. Firstly, the cognitive approach of the law is incongruent with the tests that are being applied by the psychiatrists. Professor Mackay’s research has illustrated that in practice, psychiatrists who interview accused rarely apply the narrow Windle/Johnson definition of ‘wrongness’, instead focusing on whether the accused knew his acts were “unjustified”.19 This examination of whether the acts were “unjustified” takes into account a broader spectrum of factors than the narrow “legal wrong” approach, for example it will include “[...] whether the defendant thought his/ her actions were legally/morally justified, and/or whether the actions were in perceived self defence of themselves or others, in the sense of protecting their physical or spiritual well-being”.20 Thus the reality of practice is that the question being asked by psychiatrists in preparing their report for the court is ‘did the accused know his actions were unjustified’ (emphasis added), whereas the court thereafter only considers whether the accused knew his actions were ‘legally wrong’.

Secondly, as seen from the research of Prichard, there is a distinct difference between ‘moral insanity’ and ‘cognitive insanity’.

Lamer C.J. undoubtedly had this in mind in R v. Chaulk when he stated that any derivations of the M’Naghten test ought to be directed at an “[...] analysis of the capacity of the accused to reason and to understand the meaning of the terms ‘right’ and ‘wrong’, concepts that demand a moral judgment on the part of every individual in order to be applied in practice” and that it “cannot be determined that an accused does not have the necessary capacity to engage in such moral reasoning simply because he or she does not have the simple ability to retain factual information, for example, the ability to know that a certain act is a crime in the formal sense”.21 Thus it is argued that to convict mentally disordered persons on the basis that they may have retained some abstract factual awareness that their actions were against the law despite the reality that their behaviours were driven by some other emotional or mental defect fails to provide the fairness and justice that our criminal justice system purports to provide equally to all.

DIFFERENT, YET NOT SO DIFFERENT With the problems surrounding the current law for mentally disordered offenders set out above, it is argued that there should be strong impetus for reform in this area. Firstly, the Singapore Courts could either depart from the exegetical approach in R v Windle and Rozman to move towards the other common law approaches in Canada, Australia and New Zealand whereby the individual would be accorded the defence of insanity if he or she could show that he or she was unable to appreciate the moral wrongness of their actions. Secondly, the Courts could change the test to whether the accused knew that his or her actions were unjustified (emphasis added), in the sense that clinical psychiatrists define it, in order to align the law with clinical practice.

However, the chief criticism towards these proposals for reform is the introduction of uncertainty into the law. As mentioned earlier in the words of Chief Justice Goddard, the law cannot have a “vague meaning which may vary according to the opinion of different persons”, especially in the criminal law, which serves as the state’s sword and the people’s shield against those who seek to do harm to others within society. To allow the discretionary and still uncertain influence of criminal psychiatry into the law would admittedly open up an avenue for the abuse of the 19 R.D. Mackay, Mental Condition Defences in the Criminal Law, (1995) 105-107 20 R.D Mackay,Yet More Facts about the Insanity Plea” [2006] Crim.

L.R. 399, 406-7 21 [1990] 3 S.C.R. 1303

insanity defence.

Granted, there is the argument of Packer’s ‘Due Process Model’:22 that it is better to let ten guilty men go free than to convict a single innocent defendant. Following this model, our criminal justice system should sway towards protecting mentally disordered offenders, even if it provides unscrupulous criminals with a method with which to evade the law. However, it is clear that Singapore incorporates much of Packer’s ‘Crime Control Model’23 which focuses on the efficiency with which we can achieve a high rate of conviction of the factually guilty accused, whilst ensuring that they are not obviously unfair to the accused.

As AG Chan Sek Keong (as he then was) acknowledged, this balance is determined by the “ideological and social goals of the government of the day” and that Singapore has always emphasised crime control since the “efficient and effective maintenance of law and order in Singapore is considered absolutely essential to its social, economic and political wellbeing.”24 It is acknowledged that the practical effects of reform are as important as those in principle and if there are clear detrimental effects to society, then we must be slow to adopt reform, no matter the arguments in principle.

However, it is argued that mentally disordered offenders are a special class of offenders that the courts already do treat differently and it is unlikely that any change in the law will result in abuse. As Baroness Hale puts it, “The fact that a person who is alleged to have committed a criminal offence may be mentally disordered can affect the normal processes of the criminal justice system at several points”.25 As it is in England, an individual’s mental state may affect detention, interrogation, prosecution, sentencing and release in Singapore.

The Singapore courts have taken a very strong position as to the special nature of mentally disordered offenders as can be seen from an excerpt of the Sentencing Practices of the Subordinate Courts, which states that “The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact will vary considerably according to the circumstances of the individual case [emphasis added]”.26 The courts then distinguish between non-violent and violent offences, with focus on rehabilitation and deterrence for the former and retribution and incapacitation for the latter. Thus it is puzzling that the courts acknowledge the impact of mental disorders in the sentencing but not the conviction stage of the criminal justice process. If one’s mental disorder is sufficiently serious to mitigate the sentence to reflect one’s degree of responsibility for the crime, surely it should warrant recognition at the stage of conviction to begin with. To treat mentally disordered offenders in this way is akin to saying they are more equal than others, yet equal with others. It is suggested that the courts have to determine whether mentally disordered offenders ought to be treated differently and if so, natural justice dictates that they should be treated differently at every stage of the criminal justice process.

However, this is an unenviable task since the causative link between mental disorder and crime is far from certain. As Prins concludes from his study of the relationship between mental disorder and criminality, “[m]ost psychiatric disorders are only very occasionally associated with criminality”27 and 22 Herbert Packer, “Two Models of the Criminal Process” (1964) 113 Univ of Pennsylvania Law Review 1 23 ibid 24 Chan Sek Keong, “The Criminal Process - The Singapore Model”, The Law in His Hands, A Tribute to Chief Justice Chan Sek Keong (Academy Publishing, Singapore 2012) 25 Brenda Hale, Mental Health Law (5th ed, Sweet & Maxwell, London 2010) 145 26 Judge Jasvender Kaur et al, Sentencing Practices of the Subordinate Courts (2nd ed Lexis Nexis, Singapore 2003) 92-93 27 Prins, ‘Mental Abnormality and Criminality - an uncertain relationship’, Medicine, Science and Law [1990] 30(3) 256

to assume either a causal relationship or the direction of any such relationship with respect to an individual-level predictor of crime has the potential to be highly misleading. Taking the paradigm example of a mentally disordered offender: the violent psychopath, results from the major MacArthur study of mental disorder and violence have revealed that neighbourhood disadvantage and substance abuse are also significantly associated with violence.28 More notably, despite psychopathy being a strong predictor of violence, the current test in the Hare Psychopathy Checklist derives its predictive ability not from the individual’s inner ‘emotional detachment’ factor but rather the externally affected ‘anti-social behaviour’ factor and neither delusions not command hallucinations were associated with higher rates of violence.29 As can be seen, the variety of causes of violence and crime amongst those with mental disorders and lack of certainty in the field puts the current approach of treating the mentally disordered as a unique class within the criminal justice system in doubt.

There is a slippery slope argument that if mental disorders are treated differently, then neighbourhood disadvantage and other sociological factors ought to be considered in the same manner as mental disorder. Theorists such as Robert Merton and Albert Cohen have developed their strain theories to argue that people turn to crime to satisfy a desire for monetary success and status that society’s structure currently prevents them from achieving.

Taking the argument further, Edwin Sutherland’s theory of differential association posits that criminal behaviour is learned and an individual becomes a delinquent offender because of an excess of influences favourable to violation of the law over those that are unfavourable to violation of the law. Thus it can be argued that such offenders are ‘environmentally disordered offenders’ who should be granted special treatment within the law to account for these mitigating factors that increased their propensity to crime and if they are not, then neither should mentally disordered offenders.

However, that would be taking the argument too far since it fails to account for the nature in which mental disorder vitiates one’s capacity for reason, choice and control over one’s actions that the criminal law looks to protect. Even if environmental factors do lead to an increase in propensity towards crime, it would be overly deterministic to allow that as a vitiating factor of crime if the individual concerned had the freedom to choose his or her actions. The defining concept of mens rea in the criminal law is the distinguishing factor for us here. Whilst an individual who is shaped by his environment can still be deemed responsible to answer for his intention to commit a crime, it is argued that a mentally disordered offender cannot be said to have the intention to commit the crime even if he or she knows his or her action is contrary to the law due to the above stated approach of scientific advancement in this field.

CONCLUSION In conclusion, it is argued that the current law on mentally disordered offenders is unsatisfactory at its most fundamental level for being premised on an incomplete definition of insanity and unjustifiable in terms of natural justice. Thus it is suggested that there is good reason to adopt a ‘moral’ rather than ‘cognitive’ definition of insanity to better align the law with modern science and rethink how we think about mental disorders.

28 Monahan and others, Rethinking risk assessment: The MacArthur study of mental disorder and violence, (New York: Oxford University Press, 2001) 29 Hart and others, The hare psychopathy checklist: screening version (toronto: multi-health systems, 1995)

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SEDITION?

SEDITION!?

SEDITION!

By Eugene Tan

The right to freedom of religious expression is limited when one considers potential breaches of the Sedition Act. This essay examines the Act in light of recent developments today.

INTRODUCTION Singapore presently enjoys a cosy seat at the top of many world ranking charts. Previously a British Crown Colony, Singapore shines brightly as a strategic hub for the arts, culture, business and education today. Achieving success in a world where modernisation is often conflated with Westernisation, Singapore continually receives criticism for its treatment of the freedom of press, and more broadly, for its treatment of the right of freedom of expression.

Modern case law in Singapore appears to reflect an increasing tendency towards the labelling of material as seditious, and for accused parties to be charged with sedition. The Sedition Act (“the Act”) is a wide ranging and powerful legislative tool presently in existence and continuously enforced, thus requiring proper justification and analysis to assess its place in Singapore’s legal system today.1 This essay aims to provide a critical commentary on the Act and its recent application in Singapore, beginning with an argument that the Courts’ current treatment of the law of sedition under the Act poses troublesome challenges to the constitutional rights of citizens. Acknowledging other considerations of the state justifying the use of the Act, the essay will use criminal law theory to argue that the current 1

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Sedition Act Cap 290, 1985 Rev Ed.

rendition of the law is not satisfactory because inter alia, it relies on vague balancing tests of offence and threat posed to public stability by published or spoken material against the liberty of the individual. Considering the explicit coercive nature of the Act, it is suggested that a balancing step should be put in place to weigh the liberty of citizens and the reasonableness of their conduct against the sensibilities of certain classes of people.

The essay will then conclude by suggesting that legislators and the judiciary should adopt reform of the current law and reconsider its approach taken towards materials which offend and which threaten public order. Reform in this area is required in order to provide a more satisfactory legal solution to such situations in our multi-racial and multi-religious country.

THE SEDITION ACT Revised most recently in 1985, the Sedition Act prohibits the publication, distribution, reproduction and importation of publications with a seditious tendency, with “seditious tendency” defined in section 3(1) of the Act. While the legislation against sedition is often criticised in other countries for its potential to unfairly supress political dissent, in 21st century Singapore, prosecution under the Act has thus far been limited to those

involving material which had been deemed to have the seditious tendency to “promote feelings of ill-will and hostility between different races or classes of the population in Singapore” under section 3(1)(e). As such, this essay will focus on the racial and religious considerations affecting the Sedition Act. In addition to the Act, there is an “intricate latticework of legislation” maintaining public order in existence today.2 This includes section 298A of the Penal Code dealing with religion3 and the Maintenance of Religious Harmony Act (MRHA) which allows restraining orders to be imposed upon people causing feelings of enmity, hatred, ill-will or hostility between different religious groups, amongst other things.4 This essay will also argue, in light of recent enforcement of the Act and instances in which it has been invoked for the arrest of individuals, that with modern legislation such as section 298A of the Penal Code and the MRHA, the Sedition Act’s role today has become irrelevant, and in fact, fails to provide legal certainty, unfairly labelling persons convicted of offences under the Act.5 Recent cases have exclusively considered instances where material possessed a seditious tendency under section 3(1)(e).

Notably, Public Prosecutor v. Benjamin Koh Song Huat addressed two bloggers who were convicted of posting abusive and racist remarks on a blog and on an online forum. Koh had advocated the desecration of Islam’s holy site Mecca, while Lim had made abusive comments about Malays and Islam on a forum discussing whether dogs should be refused to be picked up by taxi drivers adhering to the Muslim faith, under which dogs are believed to be “unclean”.6 The Act’s latest application in court was in the case of Public Prosecutor v. Ong Kian Cheong, where a Christian couple was jointly charged under section 4(1)(c) of the Sedition Act, read with section 3(1)(e) and section 4(2).7 The judgement raised questions of how the Sedition Act and the consideration of public order qualifies the constitutional rights to freedom of expression and the right to propagate one’s religion in a case involving the proselytization of Christian faith.

Outside of courts, and very recently, editors of socio-political blog The Real Singapore (TRS) were arrested and charged under the Sedition Act for online articles commenting on the aftermath of the Thaipusam incident in February 2015.8 The arrest was similarly grounded under the potential of the remarks to “promote ill-will and promote hostility among the different races in Singapore” and is reminiscent of the arrest of cartoonist Leslie Chew in 2013 over a comic strip making reference to Malays and the population policies of the government. The charges for sedition against Chew were later dropped.9 Moreover, there have been multiple instances where the Act has been raised by the police in their investigations, and by members of the public making police reports. Some prominent examples 2 Zhong Zewei ‘Racial and Religious Hate Speech in Singapore: Management, Democracy, and the Victim’s Perspective’, (2009) 27 Sing LR 13, 16.

3 Cap 224, 2008 Rev Ed. 4 Cap 167A, 2001 Rev Ed. 5 FA Hayek, The Road to Serfdom (London: Routledge, 1944) at 80; Glanville Williams, Convictions and Fair Labelling (1983) 42 CLJ 1, 85.

6 [2005] SGDC 272.

7 [2009] SGDC 163.

8 ‘Duo from The Real Singapore arrested under Sedition Act’ The Online Citizen (18 February 2015) <http://www.channelnewsasia.com/news/ singapore/duo-arrested-under/1665672.html?cid=FBsg> accessed 20 June 2015.

9 Jeanette Tan, ‘Singapore drops contempt of court charges against political cartoonist Leslie Chew’, Yahoo News (25 July 2013) <https:// sg.news.yahoo.com/singapore-sues-political-cartoonist-leslie-chew-for-contempt-of-court-102538645.html> accessed 20 June 2015.

are: against the organisers of a planned party involving women in provocative nun costumes in the de-consecrated CHIJMES Chapel complex in 2012,10 and in the recent arrest of Singaporean blogger Amos Yee who uploaded a YouTube video maliciously criticising both the late Mr Lee Kuan Yew and Christians. Some members of the public who made reports against him pointed out that it was in violation of the Act.11 RIGHTS IN SINGAPORE AND DIFFICULTIES ARISING FROM THE ACT Singapore maintains its position as an anti-theocratic but not anti-religious secular state.12 From the point of independence, the government has officially declared that it holds no intention to “introduce legislation to control or restrict the propagation of any religious doctrine or belief ”.13 Article 15 of the Singapore Constitution provides that “[e]very person has the right to profess and practise his religion and to propagate it”.14 On the other hand, Article 14 of the Singapore Constitution provides a qualified right to freedom of expression.15 Since its conception, Constitutional Law has often been employed in other countries, through constitutional courts and judicial review, as a tool to put in place limits on legislative powers to create criminal offences. The Constitutional Court of Uganda, for example, struck down the offence of sedition for infringing the right to freedom of speech and expression, and freedom of the press and other media.16 The decision of Brandenburg v. Ohio,17 was a landmark United States Supreme Court case which focused on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.18 In the United Kingdom, sedition and seditious libel (as common law offences) were abolished after years of disuse by section 73 of the Coroners and Justice Act 2009.19 While it appears that a proper interpretation of a country’s constitutional safeguards are key in upholding the liberty of its people and their fundamental rights, it must be noted that legislation criminalising the advocacy of overthrow of government20 or the incitement of the hatred and violence between classes of citizens remain in the legislation of developed nations overseas, albeit under different titles.21 In Ong, it was not considered by the courts whether the Sedition Act was consistent with Article 14 of the Singapore Constitution on the freedom of expression despite the defence counsel raising that the Act must be read in accordance to Article 14(2): an offence may be found (and an individual’s right to freedom of expression thus qualified) only if material of seditious tendency 10 Jeanette Tan, ‘Police investigate CHIJMES ‘Chapel Party’, Yahoo News (5 April 2015) <https://sg.news.yahoo.com/chijmes-%E2%80%98chapel-party%E2%80%99-draws-flak-from-catholic-community.html> accessed 20 June 2015.

11 Kristen Han, ‘Singapore police arrest 17-year-old over critical Lee Kuan Yew video’, The Guardian (30 March 2015) <http://www.theguardian. com/world/2015/mar/30/singapore-police-arrest-17-year-old-amos-yee-critical-lee-kuan-yew-video> accessed 20 June 2015.

12 Thio Li-ann, “Between Eden and Armageddon: Navigating ‘Religion’ and ‘Politics’” (2009) Sing JLS 365, 368.

13 Sing Parliamentary Deb 29 July 1963, vol 21, cols 261 (Mr Lee Kuan Yew).

14 Sing Constitution Art.15.

15 ibid., Art.14(2).

16 Mwenda v. Attorney-General [2011] 1 LRC 198.

17 395 U.S. 444 (1969) 18 Brandenburg v. Ohio 395 US 444 (1969).

19 Coroners and Justice Act 2009 s.73.

20 The Alien Registration Act of 1940 (US).

21 Public Order Act 1986 (UK).

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expressly or impliedly incited public disorder by encouraging unlawful action.22 This leaves the question of whether and how section 3(1)(e) of the Act should be read in determining whether a publication has a seditious tendency unanswered. The implications of Article 15 (the right to profess and propagate one’s religion) were also not discussed in the case. The right is not unlimited, and Article 15(4) provides grounds upon which the right may be qualified, among them is “public order”, which is arguably satisfied by the prevention of religious violence.

Moreover, for a more complete understanding of the constitutional context behind the Sedition Act and its interpretation, one must note the existence of what has been termed by Thio as “soft constitutional laws” (“SCLs”) in Singapore.23 These SCLs are comprised of “regulatory instruments and mechanisms of governance” implicating “some kind of normative commitment” independent of “binding rules or in a regime of formal sanctions”.24 The 1991 Shared Values White Paper25 has been argued to function as a quasi-constitutional hermeneutical tool,26 and a form of SCL.27 Of the five shared values listed, the first, “nation before community and society above self ”, and the fifth, “racial and religious harmony”, are particularly relevant in considering the place of the Sedition Act in Singaporean Law.28 SCLs enhance the interpretation of law beyond the narrow focus on just our constitutional text. Thio argues that SCLs regulate state-citizen relationships and “promotes a national identity through a form of constitutional patriotism in aid of non-liberal or communitarian democratic values in racially and religiously divided societies”.29 This is pertinent to the Court’s interpretation of the Sedition Act and the understanding of fundamental rights not as absolute trumps but defeasible interests, a contrast to more liberal societies.

Despite the existing constitutional safeguards, Singapore’s judicial approach towards the constitutional rights of citizens remains highly restrained. Interpretation of constitutional rights are said to take place within its own four walls and not in the light of analogies from other countries.30 Further difficulties arise when one considers the range of conduct which appear to fall within the ambit of the Sedition Act: A comparison between Koh and Ong demonstrate the scope of actions that may be caught under the Act, and the difficulties of the “seditious tendency” test, within which the intention of the accused to offend is irrelevant, and only knowledge of the seditious material is taken into consideration. In Koh, the accused had posted a blog post containing “highly inflammatory and insulting” material.31 On the other hand, in Ong, the seditious material (religious tracts) was not made by the defendants, and the couple were distributing it with the intention only to propagate their faith.32 While the accused did not possess an intention to injure the religious feelings of another, the Court was willing to find from facts 22 Ong (n 7), para 45.

23 Thio Li-ann, ‘Constitutional ‘Soft’ Law and the Management of Religious Liberty and Order: The 2003 Declaration on Religious Harmony’, (2004) Sing JLS, 414.

24 Anna DiRobilant, Genealogies of Soft Law, 54 Am J Comp L 499, 499 (2006).

25 Maintenance of Religious Harmony Act White Paper Cmd. 21 of 1989.

26 Benedict Sheehy, ‘Singapore ‘Shared Values’ and Law: Non East versus West Constitutional Hermeneutic’, (2004) 34 HKLJ 67, 73.

27 Thio Li-ann, Soft Constitutional Law in non-liberal Asian Constitutional Democracies (2010) 8 IJCL 4, 766.

28 MRHA White Paper (n 25).

29 Thio (n 27).

30 Chan Wing Cheong and Michael Hor, Introduction Constitutionalism and Criminal Justice (2013) 25 SAcLJ 651, 653.

31 Koh (n 6), para 11.

32 Ong (n 7).

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surrounding the case that the accused couple had been “made a conscious and deliberate decision not to investigate further” and had thus been wilfully blind, legally satisfying actual knowledge and hence could not use the defence available under section 6(2) of the Act.33 The mental element of the offence today appears to be unclear, wide and over-inclusive. It also lacks legal certainty to which society can rely upon. It is therefore argued that the Act and its related case precedents create an unsatisfactory legal environment today.

JUSTIFICATIONS AND SHORTCOMINGS OF THE SEDITION ACT Offence Supporters of the Sedition Act would justify it on two grounds: firstly, the prevention of offence to individuals of other beliefs, and secondly, the prevention to the disruption of social order.

Firstly, on the ground of offence, under the strict limits theorised in Mill’s harm principle – “that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”34 – it is argued that a person’s whose conduct is deplorable and is frowned upon when judged by others would naturally suffer a disadvantage in society’s treatment towards him, and therefore offence should not be a reason to criminalise conduct.35 Despite this, Mill’s definition of harm remains broad and it is difficult to divine a clear and meaningful definition of offence in his work.

It is useful to contrast Mill’s argument to Joel Feinberg’s argument that offence stands as a good reason to criminalise.36 It is put forth that if “mediated by balancing tests” in a “very precise way”, the offence principle provides a plausible reason to criminalise so as to protect offended victims.37 An adjudicatory balancing process from Koh was indeed applied by the court in Ong, although it is argued that the state of law remains problematic. Firstly, while the Sedition Act refers only to race and “classes of people”, Ong determined that religion would fall within these categories.38 This conflation of race and religion in both Koh and Ong, and the similarity and interchangeability of the Sedition Act and section 298A of the Penal Code calls into question the former’s place in the “latticework” of law we have today.39 Secondly, offence as a justification and the focus on and manner in which the Court today examines the “seditious tendency” of material leaves the law today in want of legal certainty.

Generally, the principle of legal certainty is that the law must provide those subject to it with the ability to regulate their conduct. In its decisions concerning the Act, two competing factors appear to be balanced by the Court: the constitutional right of one to express his religious belief against the right of another to be protected from religious offence.40 With regards to the latter, it must be noted that there is no common law or constitutional right protecting against such offence, and it is surprising that such an interest can be determined to trump or 33 ibid., para 51.

34 J S Mill, On Liberty (1849).

35 ibid.

36 J Feinberg, The Moral Limits of the Criminal Law Vol 2: Offense to Others, vol. 2 (OUP 2003), 20.

37 ibid., 176.

38 Ong (n 7).

39 Koh (n 6).

40 Thio Li-Ann, Contentious Liberty: Regulating Religious Propagation in a Multi-Religious Secular Democracy [2010] Sing J Legal Stud 484, 507.

equal the constitutional right of a citizen. With regards to the former, while an “attack” on the beliefs of another’s religion cannot be comfortably said to be merely “expressing” one’s religious belief, one must note that it is difficult to draw a clear distinction between an “attack” and an “expression” due to the mutually exclusive viewpoints of different religions: professing one’s religious beliefs often involves preaching that non-believers will suffer spiritual and eternal damnation. In the MRHA White Paper, the use of persuasion through pointing out the differences between religions was acknowledged.41 Proselytization of religion understandably leads to feelings of ill-will, and difficulty arises when one attempts to draw a clear and fair line at which the degree of offence caused is so grave that criminalisation is justified.

Wong argues that the distinction between aggressive preaching causing grave offence and mere profession of one’s religious beliefs lies merely in mannerism and tone.42 From this, he argues that the law is ambiguous and requires a clearer distinguishing line.43 Arguably, the focus on so simple a test of “offence” in determining whether speech or publication has a seditious tendency is an inadequate method to justify the criminalisation of such conduct. Moreover, the degree of offence is often difficult to measure, and often varies based on the recipient’s subjective beliefs and opinions. Neo points out that it was “highly problematic” the Court in Ong appeared to rely on the testimony of the Muslim complainants, that they “were angry”,44 and the conclusions made by the police officer and the complainants that “the tracts have a tendency to promote feelings of ill-will and hostility between Muslims and Christians”.45 The Court of Appeal in Chng Suan Tze v. Minister for Home Affairs affirmed that “the notion of a subjective or unfettered discretion is contrary to the rule of law”, upholding the importance of legal certainty in adjudication.46 Outside of the courts, the Minister of Law, K. Shanmugam, has also expressed that Singapore is committed to the rule of law and recognised it as “a foundation of our society and key ingredient of our success”.47 In light of the above arguments, it is submitted that to justify the Act plainly on the ground that seditious material causes grave offence is unsatisfactory, as the subjective nature in which individuals of different temperaments and background take offence and the near-impossibility to ascertain a satisfactory degree of offence at which the law should begin to criminalise leaves the law today in want of legal certainty. Moreover, the flexibility afforded to the courts under this act is unwarranted when one considers the existence of section 298 of the Penal Code, which would satisfactorily penalise would-be offenders in similar circumstances of Koh. Public Order as Harm Public order as a justification is reflected in the common law of seditious libel, where reference is made clearly to the incitement of violence, creation of public disturbance, or disorder against the government.48 In Singapore, it is commonly put forth that race and religion pose the most important challenges to social 41 MRHA White Paper (n 25), para 16.

42 Ronald Wong, Evangelism and Racial-religious Harmony: A Call to Reconsider Tolerance (2011) 29 Sing LR 85.

43 ibid.

44 Ong (n 7), para 59.

45 Jaclyn Ling-Chien Neo ‘Seditious in Singapore! Free Speech and the Offence of Promoting Ill-will and Hostility between Different Racial Groups’ (2011) Sing JLS 351, 362.

46 [1988] SGCA 16.

47 K. Shanmugam, The Rule of Law in Singapore [2012] Sing JLS 357, 365.

48 De Libellis Famosis 77 ER 250 (1572).

order in Singapore and the success of the nation lies on its careful maintenance of its “fragile social cohesion”.49 Moreover, the fear of racial or religiously inspired violence is often reiterated in Singapore’s legislative process.50 It is argued that understanding violent public reactions as “harm” would allow the Act to be justified under Mill’s Harm Principle.51 “Public order” as a justification, however, may also be understood to be a merely arbitrary one.

The Sedition Act criminalises the publishing of material on the basis of its seditious tendency. While this was only briefly considered in Ong, it was argued by the defence counsel there that section (3)(1)(e) of the Act must be read in light of Article 14(2)(a) of the Singapore Constitution, such that for the Act to be enforced against a person’s right to freedom of speech and expression, “the publication must expressly or implicitly incite public disorder by encouraging unlawful action”.52 Wong has advocated a narrow understanding of “public order” to mean the likelihood to provoke members of a race or religion to riot, or cause immediate threats to public safety, and ultimately violence.53 On his suggested interpretation of Article 14(2)(a) of the Singapore Constitution and section (3)(1)(e) of the Sedition Act, accused persons proselytising their faith like the couple in Ong should not be liable for the offence if the material in dispute did not have that effect on public order. His view is most strongly supported by section 9A of the Interpretation Act,54 which, following the case of Chee Siok Chin v. Minister of Home Affairs, necessitates a “generous and not a pedantic approach” of “public order”.55 Following this, one is then led to the broader question: to what extent may concerns over public order provide a satisfactory justification for the enforcement of a law which possesses the potential to seriously impede the expression of religion and opinion of citizens, as the Sedition Act does?

One might begin with the fact that 83% of Singapore’s population profess a religious faith.56 In the MRHA White Paper, fears of offended religious groups’ “militant” reactions were raised.57 In this context, one may appeal to Mill’s harm principle again in justifying the Sedition Act – upon taking offence at such remarks, violent protests may arise, affecting the physical wellbeing of persons and property.58 Indeed, it appears that racial and religious violence remains a strong justification for the Act: the September 1964 race riots and the Maria Hertogh riots were cited as examples of what the decision in Benjamin Koh had hoped to deter.59 However, these examples have been criticised as an “obsessive hangover” by Wong, who further points out that the riots were exaggerated by foreign press, political influences from the Konfrantasi period, and the inefficiency of the Government of the time in handling the situation.60 Moreover, 49 Chan Sek Keong, Multiculturalism in Singapore the way to a harmonious society (2013) 25 SAcLJ 84.

50 Maintenance of Religious Harmony Act White Paper Cmd. 21 of 1989; Chan Wing Cheong and Michael Hor, Introduction Constitutionalism and Criminal Justice (2013) 25 SAcLJ 651.

51 Mill (n 34).

52 Ong (n 7), para 45.

53 Wong (n 42), 87.

54 Cap 1 2002 Rev Ed Sing.

55 [2006] 1 Sing LR(R) 582 (HC), para 49.

56 2010 Population Census: Demographic Characteristics, Education, Language and Religion <http://www.singstat.gov.sg/publications/publications-and-papers/cop2010/census10_stat_release1> (2010 Census), accessed 20 June 2015.

57 MRHA White Paper (n 25), para 13.

58 Mill (n 35).

59 Koh (n 6), para 6.

60 Wong (n 42), 95; Tom Eames Hughes, Tangled Worlds: The Story

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the constitutional climate in Singapore is sometimes understood to stand apart from other Western liberal countries and it has been argued that rights in Singapore are viewed as defeasible interests rather than trumps due to the existence of SCLs.61 However, on a closer comparison on the treatment of the freedom of expression, between the Western liberal countries and Singapore, Singapore does not appear to be that different after all. The English case of Redmond-Bate v. DPP held that it is not a police duty to stop lawful conduct unless it has the potential to provoke violence.62 Moreover, free speech does not remain an unqualified right even outside of Singapore. Article 10(2) of the European Convention on Human Rights states that the exercise of the freedom of expression may be qualified by formalities “necessary in a democratic society” which are prescribed “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime”.63

It is submitted that while potential public violence may indeed be a reason in justifying the Act, in its current iteration and interpretation by the courts, the Act remains unsatisfactory as it remains over-inclusive and does not provide a clear criterion to distinguish between contrasting cases of different facts.

However, the risk of harm arising through public violence cannot be said to be equivalent to harm dealt to another. The harm principle has been described to have been “stretched to breaking point even with respect to fear of harm itself ”. 64 On this understanding, the publication of “seditious material” itself may not constitute direct harm to others, but the violence caused by public unrest may. In laying down rules, the criminal law often over-criminalises. For example, instead of requiring drivers to drive safely, it sets a speed limit of 90. Yet it is sometimes safe to drive over 90. Simester and Von Hirsch argue that this is justified due to practical necessity.65 As the state will either over or under criminalise, the law makes the hard choice of choosing the former. There is thus little alternative but for legislation to punish both classes of persons – those who attack race and religion, such as the accused in Koh, and those who merely proselytise without causing offence and without specific intention, such as the accused in Ong.66

Supporters of the Act may also subscribe to Devlin’s famous argument on legal moralism,73 who argued that the state has the right to eradicate, through the criminal law, any action which is determines to be “so vice” to uphold social morals and norms and preserve the social fabric from disintegration.74 Due to the nation’s youth and the mixed cultural heritage of its citizens, Singapore lacks an extended shared past, and it has been pointed out that its social norms have been instead determined by government developed national ideology.75 Racial and religious harmony has been highlighted as one of the “shared values” in Singapore in a White Paper.76 That same White Paper has been argued to have been meant not just to reflect Singaporean values, but to constitute them through the “arrest of excessive individualism”,77 and thus may be understood to impose a set of desired characteristics onto the residents of Singapore.

On the other hand, to say that the legislation is justified in being over-inclusive does not then mean that the state is justified in punishing those caught within its over-inclusive ambit. Ferzan notes that there is a “long road” between ex ante criminalisation and ex post punishment.67 Indeed, a finding of mens rea is required in most criminal acts. The Sedition Act in Singapore shares a unique characteristic with its Malaysian counterpart in that neither requires a finding of seditious intention or specific intention.68 The offence is thus satisfied by a finding of intention to distribute material with seditious tendency, rather than by distributing of such material with a seditious intention.69 As mentioned above, because of the nature of religion in Singapore, it remains difficult for one to draw the line between outright insult and religious propagation of faith, apart from relying on vague distinctions of manner and tone.70

Moreover, Singapore’s “sovereignty, integrity and unity” has been declared as the paramount mandate of the Constitution such that anything contrary to its objectives must be restrained.78 A blanket ban on religious publications of Jehovah’s Witnesses, a religion opposing military service,79 and the dismissal of a Jehovah’s Witness teacher who refused to take the national pledge during school assembly were upheld in Singapore,80 reflecting that in light of SCL, the Court is willing to set aside interests such as religious freedoms. Similarly, little regard was given to the Article 15 rights in Ong. In the interests of social cohesion, the Courts have proved willing to place community concerns above that of the individual, reflecting a strong sense of communal morality in Singapore. Arguably, on Devlin’s conception, this approach is justified to uphold Singapore’s common morality.

Section 6(2) of the Act provides a defence for where seditious material is published without the accused’s knowledge of its

Devlin’s famous test of “the Man on the Clapham Omnibus” to determine public morality is however unsatisfactory as it easily leads to abuse by the majority. Dworkin, whilst agreeing that common morality is important, rejected Devlin’s test as flawed on the basis that it includes discriminatory views, and therefore could not accurately represent the moral views of society.81

of Maria Hertogh (Singapore: Institute of Southeast Asian Studies, 1980); Lau, Albert, A Moment of Anguish: Singapore in Malaysia and the Politics of Disengagement (Singapore: Times Academic Press, 1998).

61 Thio (n 27).

62 [2000] HRLR 249.

63 European Convention of Human Rights, 64 Kimberly Kessler Ferzan ‘Prevention, Wrongdoing, and the Harm Principle’s Breaking Point’ (2013) 10 Ohio St J Crim L 685.

65 A P Simester and Andreas Von Hirsch Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Hart Publishing 2011).

66 ibid.

67 Ferzan (n 64), 687.

68 Sedition Act 1948 (Malaysia).

69 Tan Yock Lin, Sedition and its new clothes in Singapore [2011] Sing JLS 212.

70 Wong (n 42), pg 99.

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seditious tendency. Wong has suggested that the defence of section 6(2) may be refined by providing for a clause that if an intention to offend is found, it may be inferred that the actor knew that the act was seditious or objectionable – and thus no defence would be availed.71 The current position thus leaves cases where there is an explicit intention to offend (as in Koh)72 and cases where there the defendant proselytises in good faith (as in Ong) indistinguishable. This vague and unsatisfactory state of the law naturally leads one to consider the possibility of legislative reform, and it is suggested that a requirement of intention would provide a greater degree of legal certainty.

Common Morality

71 ibid., pg 97.

72 Koh (n 6).

73 Patrick Devlin, The Enforcement of Morals (OUP 1959).

74 ibid.

75 Thio (n 27).

76 MRHA White paper (n 25), para 52.

77 ibid., 778.

78 Colin Chan v. Public Prosecutor [1994] 3 SLR 662, 684.

79 ibid.

80 Nappalli v. Institute of Technical Education [1998] SGHC 351.

81 Ronald Dworkin, ‘Lord Devlin and the Enforcement of Morals’, in

This point is especially pertinent to sedition, as a reading of the Act based on public morality would allow the enforcement of it based on the whims of the majority, clamping down on the religious freedoms of others, chilling both freedom of expression and religious freedom in Singapore. On a closer examination of Dworkin’s argument, one finds that it hinges on the democratic process and the legislator’s role in sifting through the prejudice of his community.82 This however, may be determined to be unsatisfactory, as it would not prevent the tyranny of the majority where the majority’s view were to be substantiated by something other by prejudice: for example, the fear of the immediate risk of public violence arising from seditious comments. Hence this understanding of the Act may still be unsatisfactory.

Devlin’s account of popular morality has, in fact, also been criticised on another ground” that there is a lack of focus on reason, and instead, a mere focus on morality to determining what is criminal. Hart argued that law and morality were logically mutually exclusive and that the mere belief that an act was immoral could not justify an infringement of the actor’s liberty, and thus could not be reason enough to impose criminal liability.83 The Sedition Act, in infringing an actor’s liberty, would thus only be justified where it impinges upon the liberty of another – and not plainly by the fact that there has been immorality. Following this, the exercise of one’s freedom to express religious beliefs which may result in another taking offence cannot be considered criminal conduct.

While an increase in missionary zeal has been noted in Singapore,84 Wong argues that a level playing field which upholds the freedom of propagation of religion will develop greater social security in a pluralistic society as it allows for an “environment conducive for seemingly incommensurable religions to coexist and actively advocate their cause without resorting to violence”.85 While racial and religious harmony is but one of five Shared Values of Singapore, with “consensus instead of contention” cited as another, it is suggested that a conducive environment for dialogue, rather than the criminal law, may instead be the right tool to create a harmonious society.86

increasing trend of charging for sedition in court prosecutions has been described as “not a healthy trend”.89 As shown in the discussion above, the Act fails to provide individuals with legal certainty, in that it remains difficult to “foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge”.90 Moreover, the highprofile nature of the offence and the historical connotations of incitement of rebellion against legal authority cannot be said to conform to the principle of fair labelling.91 Forgiveness and tolerance has been raised as a positive alternative to matters which would otherwise technically fall within the definition of Sedition in the Act.92 Indeed, as mentioned above, one of our five Shared Values is “consensus instead of contention”.93 The treatment of racial and religious discourse must be approached with the consideration of the long-term goal of integrating the population towards creating a shared sense of identity. In this regard, Neo has argued that repressing open communication, as the Sedition Act arguably does, conversely leads to suspicion and resentment, hindering process towards true integration of citizens.94 In light of the arguments against the relevance of the Sedition Act and its unfair and inconsistent application, it is submitted that a revision to the law is urgently required. By partitioning and relabeling the many actions which are caught under the Act, and through the introduction of a more satisfactory mental element, Singapore will be better equipped to tackle new issues arising from, among other things, the pervasive nature of the internet which has brought about a wider array troubling issues, such as explosive online reactions by the Singaporean public and the growth of religious extremism online.

REFORM AND THE POSSIBILITY OF A BETTER APPROACH While certain exercises of the right to freedom of expression may irritate or offend that the sensitivities of some groups, it is argued that the employment of criminal law sanctions must follow a principled approach and should be strictly limited only as the ultima ratio in Singapore. That being said, in protecting public interests, such freedom of expression must indeed be restricted in some instances, such as where there is an intention to provoke public violence.

The Sedition Act continues to be viewed as an archaic, but convenient tool for persecution where offensive and intentional attacks by words have been made against racial or religious groups. Recent examples include the arrest of the editors behind the socio-political website The Real Singapore,87 and the prosecution of a Filipino nurse charged for sedition after making anti-Singapore comments on Facebook.88 However, the R Wasserstrom, Morality and the Law (Wadsworth Pub Co 1971) 69.

82 ibid., 84.

83 HLA Hart, Law, Liberty and Morality (Stanford University Press 1963).

84 ibid., para 10.

85 Wong (n 42), 102.

86 MRHA White Paper, (n 25), para 52.

87 (n 8) 88 Elena Chong, Former Filipino nurse charged with sedition, giving false info to police The Straits Times (7 April 2015) <http://www.straitstimes.

com/news/singapore/courts-crime/story/filipino-ex-nurse-charged-seditionand-giving-false-info-the-polic> accessed 20 June 2015.

89 (n 10), (Professor Jack Lee).

90 Hayek (n 5).

91 Williams (n 5).

92 (n 8), (Kelvin Chan); Kalpanath Singh v. Law Society of Singapore [2009] 4 SLR 1018 (HC).

93 MRHA White Paper, (n 25), para 52.

94 Neo (n 45), 371.

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image: MoneyCrashers.com

DELAYED DIVORCE: SINGAPORE’S PETITION TIME BAR

By Joanne Leong This essay evaluates the desirability of retaining or reforming the time restriction on divorce, with particular reference to how such a restriction furthers the objectives of divorce law.

DIVORCE AND ITS PURPOSE Divorce is, seemingly paradoxically, meant to protect marriage.

Historically, when divorce was still impermissible in the United Kingdom, estranged couples were kept legally bound to one another in marriage. This was despite the relationship having long broken down, and despite numerous cases where each party had formed new partnerships that could not be formalized. This precipitated many illicit unions subsisting behind the false front of stable marriage. Leading up to the eventual acceptance of divorce was the increasing recognition that preventing divorce is not the same as preventing the breakdown of marriage. Hence, this essay posits that divorce protects the institution of marriage in two ways: Firstly, it allows marriages “in name only” to cease to be known as “marriages”, thereby preserving the sanctity of 103

marriage to some extent. Secondly, it enables newly formed (and presumably more stable) partnerships to be recognised by law as marriages.

Furthermore, not being able to divorce could be viewed as a denial of an aspect of one’s self. Humans are social creatures, and “if the self is inherently social, then a concern for other persons is fundamental to the self and is not reducible to a mere variety of self-concern”.1 Indeed, this is often the case where one is attached to and identifies with one’s family, a particular community and even a nation. The relevant description of the self thus embraces 1 M Friedman, What are Friends for?: Feminist Perspectives on Personal Relationships and Moral Theory (Ithaca, New York, Cornell University Press, 1993) 68

more than a single, individual human being,2 revealing perhaps a fundamentally dialogic character of individual lives. Out of one’s many interpersonal relationships, that which is spousal is likely to be one of the most important, if not the most important, permeating one’s life and influencing decision-making. Whether the effects of the spousal relationship on one’s self-identity are positive or negative, they tend to be profoundly felt. Therefore, as Reece asserts,3 it is crucial that spouses are able to escape the effects of their relationship. Otherwise, if divorce is denied then the self is denied. As research conducted by Smart and Neale showed,4 one of the main difficulties that women encountered leading up to divorce was that they had lost their true selves, and needed to regain this lost identity. Conversely, Regan argues that marriages that work are those where one’s self-identity and one’s quest in self-discovery do not conflict with the relationship – each spouse understands the other and helps the other become the person they want to be.5 Therefore, on the cusp of radical divorce law reform in 1966, the Law Commission wrote that good divorce law should seek “(i) to buttress, rather than to undermine, the stability of marriage; and (ii) when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation”.6 Therein lies a delicate balance between numerous interests: protecting marriage, recognising party autonomy and allowing for self-determination, and enabling a legal union to end with minimum chagrin.

DIVORCE IN SINGAPORE Section 95 of the Women’s Charter7 states that a divorce petition by either party to a marriage may be made, on the sole ground of irretrievable breakdown of marriage. Such irretrievable breakdown of marriage will not be held unless at least one of the five facts stated in section 95(3)(a) to (e) are proven. Also, section 94 states that a party cannot petition for divorce within the first three years of marriage, unless the court grants permission for him or her to do so if “the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent”.8 This three-year time restriction mirrored that in the UK’s Matrimonial Causes Act 1937. In the UK, the three-year restriction has since been replaced with an absolute one-year restriction, following recommendations made by the Law Commission in 1982.9 The three-year restriction on divorce is arguably an excessively burdensome requirement. It prevents parties from moving on and remarrying, and instead forces them to remain legally bound to each other despite being separated by an emotional gulf. The wording of the exception of ‘exceptional hardship or depravity’ clearly sets a high threshold, with the court in Zhao Lu v. Lee Yong Kwong Johnson10 emphasizing that applicants must establish something “out of the ordinary circumstances and desires of parties to a normal divorce”.11 The court distinguished Zhao Lu 2 M Sandel, ‘Liberalism and the Communitarian Critique: A Guide for the Perplexed’, 23 Canadian Journal of Political Science 419 at 425 3 H Reece, Divorcing Responsibly (Hart Publishing, 2003) 114 4 C Smart and B Neale, Family Fragments? (Cambridge, Polity Press, 1999) 8 5 M Regan, Family Law and the Pursuit of Intimacy (New York, New York University Press, 1993) 45 6 Law Commission, Time Restrictions on Presentation of Divorce and Nullity Petitions (Law Com No 116, 1982) para. 15 7 Cap. 353, 1997 Rev. Ed. Sing.

8 S. 94(2) 9 Law Commission, Time Restrictions on Presentation of Divorce and Nullity Petitions (Law Com No 116, 1982) 10 [2007] SGDC 99 11 [2007] SGDC 99 [68]

from Ng Kee Shee v. Fu Gaofei,12 where the defendant “shut[ting] all doors”13 to the applicant, completely abandoning him and refusing to respond to his attempts to contact her were crucial to the applicant’s success in establishing ‘exceptional hardship or depravity’ in the latter case. Whereas in Zhao Lu, the court held that the defendant’s repeated deception of the applicant, allegedly causing her mental suffering, was insufficient.

Another objection to the time bar that has been raised14 specifically vis-à-vis cases of domestic violence is that insisting that victims remain married to their abusers seems to make light of their suffering, and fails to protect the weaker party. Dicta in the recently decided Tan Yan Ling Kyna v. Chan Wei Zhong Terence15 expressed that even if the alleged two incidents of physical abuse were taken to be true, it would nevertheless be insufficient to bring the case within the ground of “exceptional hardship” in s.94(2) to invoke the exception to the three-year bar,16 meaning that victims of abuse will likely have to wait out the three years before petitioning for divorce. The argument against this objection might be that it is asking the law of divorce to do a job it is not meant to do. There are other remedies to domestic violence available, such as the possibility of an application for a personal protection order, so that the vulnerable party does not have to be exposed to further suffering. The victim of the abuse may also choose to leave the abuser in the meantime before he or she is allowed to file the petition.17 As Choo J added in Tan Yan Ling Kyna,18 “[t]he moratorium is intended to hold out the hope of reconciliation – and who is to say that even in extreme cases of abuse, the abuser may not see the error of his or her ways and reconcile with the other?” However, the inescapable difficulty is that, in this bid to compel parties to “work through their problems” first, the all-too-common feeling among victims that the abuse is in some way their fault, and that they are in part responsible for righting the wrong, might be unwittingly reinforced. Also, forcing a victim to remain legally wed to his or her abuser is arguably a gross infringement of autonomy, and an unnecessary degradation of the gravity of harm done.

Another problem with the current law is regarding the exception to the three-year bar which can only be invoked if exceptional hardship or exceptional depravity can be proven. In requiring this, the petitioner is encouraged to make the most unpleasant allegations possible and find fault with his or her spouse.

Judicial scrutiny of such private and sensitive matters is also likely perceived as demeaning.19 The present approach is thus likely to provoke bitterness, hostility and humiliation in divorce proceedings.20 However, the presence of a time restriction to bringing divorce petitions serves an important purpose. There is a strong policy reason to uphold the value and sanctity of marriage, by ensuring that divorce is not easily available in a matter of days after the marriage.21 As Section 46 of the Women’s Charter22 provides, “upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other 12 [2005] 4 SLR 762 13 [2007] SGDC 99 [65] 14 J Tan, ‘Shorten Time Bar to Divorce’ (Association of Women for Action and Research, 29 Oct 2014) <http://www.aware.org.sg/2014/10/shortentime-bar-to-divorce/> accessed 25 January 2015 15 [2014] SGHC 195 16 [2014] SGHC 195, [5] 17 [2014] SGHC 195, [6] 18 [2014] SGHC 195, [6] 19 Law Commission 2.5 20 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 420 21 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 423 22 Cap. 353, 1997 Rev Ed Sing

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in safeguarding the interests of the union and in caring and providing for the children”. Therefore, Professor Debbie Ong recognised that the time restriction requires spouses to live by section 46, at least in the early foundation years of marriage.23 The policy reasons against easy divorces also extend beyond the individual couple, to broader societal interests. If divorce law is too liberal, it could potentially contribute to the increasing acceptability of divorce as the solution to unhappy marriages.

As Deech argued, “[t]he increased divorce rate results in greater familiarity with divorce as a solution to marital problems [and] more willingness to use it”.24 Hence, having restrictions to its availability curbs the possibility of such attitudes between the parties and in society that might undermine marriage and its obligations.

On another view, the time restriction could play an important role in underpinning the parties’ commitment to the marriage – it could encourage couples to work through their problems and save their marriage, and thus be beneficial for them in the long run. Scott25 frames the issue as barriers to divorce protecting the couple’s sense of security that is derived from knowing that the marriage cannot be ended too easily. Otherwise, easy termination policies may undermine the freedom of individuals, interfering with their ability to plan for the long term and pursue their life goals. The same argument can be applied to the time bar, and how it gives the couple assurance that a petition cannot be filed too soon after the marriage. This argument for encouraging parties to work through their problems instead of resorting too quickly to divorce is especially strong given that difficulties in marriage can often be attributed to the early years of married life. Marriage requires the two parties to adjust to their new living arrangements, “renegotiat[ing]…a myriad of issues they have previously defined individually, or that were defined by their families of origin”.26 Empirical research from the Singapore Department of Statistics27 has shown that marriages of duration between five to nine years have consistently formed the majority of divorce cases in Singapore from 1999 – 2000, measuring at approximately 32% on average. In 2002, within this band of couples, nearly 50% had established irretrievable breakdown of marriage based on the fact of living apart for three years or more.28 This sends a strong signal that these couples had long “informally ended” their marital relationship in choosing to live apart before the formal measures were taken to sever the legal ties, thus suggesting marital breakdown much earlier in the marriage.29 There is thus an interest to keep the union intact during this period, as parties may be unable to see the light at the end of the tunnel while still navigating the choppy waters of a young marriage. As eloquently phrased by Reece, “[b]eing required to wait before divorcing recognizes that the spontaneous self is only a snapshot of the authentic self.”30 Though this statement was made in relation to the mandatory waiting period of reflection imposed by the Part II of UK’s Family Law Act 1996, a similar sentiment is applicable to the 23 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 425 24 R Deech, ‘Divorce Law and Empirical Studies’ (1990) 106 LQR 229, 242 25 E Scott, ‘Marital Commitment and the Legal Regulation of Divorce’ in A Dnes and R Rowthorn (eds) The Law and Economics of Marriage & Divorce (Cambridge University Press, 2002) 35 26 E Carter and M McGoldrick, The Changing Family Life Cycle, A Framework for Family Therapy (2nd ed, Boston: Allyn and Bacon, 1989) 16, 209 - 210 27 Singapore Department of Statistics, Ministry of Trade & Industry, Statistics on Marriages and Divorces 2002, (2003) 65 28 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 429 29 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 430 30 H Reece, Divorcing Responsibly (Hart Publishing, 2003) 122

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time bar preventing a grant of a divorce decree. In many cases, a time restriction thus enables the authentic self to prevail over the spontaneous self.

Yet, there is a considerable body of opinion which sees no case for retaining a time restriction at all. As Andrew Bainham argues, divorce law does not necessarily affect the quality of marital relationships, which is “surely the factor most likely to determine whether those relationships end or survive”.31 Martin Richards adds that “those who argue for harder divorce seem to have an exaggerated view of the power of the law to control people’s domestic living arrangements…Such a view suggests that it is only the difficulty of getting out that keeps people married.”32 Furthermore, evidence shows that couples embarking on marriage rarely believe that they are likely to divorce in the future,33 and this view that “[m]ost persons… enter into marriage without considering the terms of the law of divorce”34 has earned support of the Scottish Law Commission.

It is hard to imagine the sentiment among Singaporean couples being any different. Hence one might question whether the couple’s investment in their marriage depends on the presence of formal barriers to ending it, and whether there is truly a causal connection between a lack of time restriction and a high incidence of divorce (particularly in the early years).

Nevertheless, this objection to the restriction does not account for the need to preserve attitudes regarding the sanctity of the institution of marriage. This essay submits that it is in society’s interest that the institution of marriage to be so respected, and that divorce be regarded as regrettable. Furthermore, while this assertion may mean that stricter divorce laws may not necessarily encourage parties to ruminate any further over their decision to enter marriage, this essay submits that this must be distinguished from the situation mid-marriage, pre-divorce.

Preventing parties from calling it quits too early in marriage encourages them to reconcile, thus maximising the potential for the marital relationship’s quality to improve. Of course, whether there is in fact any potential for the law to effect such a change on the couple’s part is still susceptible to Richard’s abovementioned criticism.

Having established the need for a time restriction, there is an additional reason why the three-year bar should be shortened: reducing the number of children who are victims of divorce.

Gottman cites “depression, withdrawal, poor social competence, health problems, [and] poor academic performance”35 as several of the many conduct-related difficulties that such children face as a result of their parents’ marital woes. If there has already been a breakdown of marriage, then perhaps allowing for divorce would help prevent the added complication of children to their already volatile relationship. Professor Ong raises the important point that floodgates concerns do not weigh heavily against shortening the time bar, for it will be rare that couples to a young marriage will be able to establish irretrievable breakdown of marriage, since there will be fewer statutory facts to rely on to prove such breakdown.36 In other words, shortening the time 31 A Bainham, ‘Divorce and the Lord Chancellor: Looking to the Future or Getting Back to Basics’ (1994) 53 CLJ 253 32 M Richards ‘Private Worlds and Public Intentions – The Role of the State at Divorce’, ch 1 in A. Bainham and D. Pearl (eds) Frontiers of Family Law (Chancery Law Publishing, 1993), p. 15 33 J Herring, R Probert and S Gilmore, Great Debates in Family Law (Palgrave Macmillan 2012) 178 34 Scottish Law Commission, Divorce – The Grounds Considered (Scot Law Com No 6, 1967) para. 30 35 J Gottman, What Predicts Divorce? The Relationship Between Marital Processes and Marital Outcomes (Hillsdale, N.J.: Lawrence Erlbaum Associates, Publishers, 1994) 4 36 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 435

bar will not open the floodgates, since there will be few genuine cases of breakdown. It is thus an acceptable means to reduce the hardship inflicted in the process, particularly because the longer a couple is married prior to the divorce, the more likely they will have children.37 Furthermore, it is not an uncommon false belief that having children might be a catalyst in the path to reconciliation. As Davidson and Moore caution, this mistaken belief is on the overly-idealistic bases that having a child will motivate the married couple to cooperate in caring for the child, that the parents will themselves become better people as a byproduct of acting as a role-model for the child, and that the child will be an added incentive to fix the marriage.38 However, in reality the addition of children exacerbates the problem. The resulting fallout becomes even more painful in terms of complex custody issues that the family has to go through, along with its ramifications and the immediate harm done to the child.

The position of English law has thus settled on a one-year absolute time restriction. The Law Commission explained its recommendation: “This would be a long enough period to assert the public interest in restricting precipitate divorce and also to have some influence in restraining impulsive or illconsidered proceedings prompted by initial problems or disappointment. Equally, we believe that one year would not be so long a period as to be unendurable for people in genuine situations of marital breakdown.”39 Professor Ong herself has called this position a “sensible” one to take, and recommends that the one-year restriction be adopted in Singapore instead.40 Though whichever duration the law stipulates as its time bar has an inevitable element of arbitrariness, this essay agrees that a one-year restriction would better reflect the needs countervailing against the state’s and society’s interest in protecting the institution of marriage, mainly, recognising party autonomy, enabling each party to move on to form possibly more stable relationships recognisable by law within a reasonable amount of time, and preventing innocent children from having to suffer the ill-effects of parental divorce.

37 Statistics on Marriages and Divorces 2002, Singapore Department of Statistics, Ministry of Trade & Industry, Republic of Singapore (2003) at 54 38 J Davidson, Sr and N Moore, Marriage and Family (Dubuque, IA: Wm.C.Brown Publishers, 1992) 200 39 Law Commission, Time Restrictions on Presentation of Divorce and Nullity Petitions (Law Com No 116, 1982) paras 2.30 and 2.32 40 D Ong, ‘Time Restriction on Divorce in Singapore’ [2003] SJLS 17, 428

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Image: Flickr CC @ Edwin.11

By Clara Yeo

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INTRODUCTION Since Singapore’s independence, the Singapore and UK Parliaments have evolved independently of each other. This article will compare the functioning of the Parliaments of Singapore and the United Kingdom with an emphasis on their ideal functions. It will also comment on how the Parliament of Singapore may fulfil its role more effectively.

The Parliament of Singapore assumed its current appellation upon independence in 1965.1 However, its model of governance has roots that are far older. Singapore inherited much of its administrative and legal systems from the British. With regards to Parliament, the United Kingdom (UK) and Singapore have in common the Westminster model of parliamentary government, named after the seat of the UK Parliament.

Enshrined in the Singapore Constitution are provisions for the Executive, including that the Prime Minister (PM) should, in the President’s judgement, “command the confidence of the majority of the Members of Parliament”.2 The Parliament (Privileges, Immunities and Powers) Act enacted in 1962 illustrates how the mechanisms of the Singapore Parliament are derived from the UK model. It reads “The privileges, immunities and powers of Parliament and of the Speaker, Members and committees of Parliament shall be the same as those of the Commons House of Parliament of the United Kingdom and of its Speaker, Members or committees at the establishment of the Republic of Singapore” [emphasis added].3 A discussion of parliamentary effectiveness would be incomplete if it did not address the socio-political differences between the two entities compared. The UK has been described as a liberal democracy,4 while Singapore has been described as a socialist democracy5 or even an “illiberal democracy”.6 Singapore’s politicians acknowledge this difference to some extent, as when then Senior Minister Goh Chok Tong said that Singapore is “not a liberal democracy like in Britain or the US”.7 The judiciary notes contextual differences between Singapore and other countries, with V K Rajah reasoning in Chee Siok Chin v Minister for Home Affairs that “Standards set down in one country cannot be blindly or slavishly adopted and/or applied without a proper appreciation of the context in another.”8 The People’s Action Party (PAP), the governing party currently with 80 out of 87 elected MPs, positions itself as having democratic socialist ideals.9 Due to the PAP’s long-term dominance in politics and government since Singapore’s independence, the laws and practices of Parliament would inevitably be guided by the PAP’s ideals and attitudes. Nonetheless, this article will seek to argue that Singapore’s contextual differences should not obstruct increased accountability.

1 Parliament of Singapore, ‘Historical Development of Parliament’ < www.parliament.gov.sg/timeline> accessed 14 January 2015. Prior to independence, the legislature was known as Legislative Council, then Legislative Assembly 2 Constitution of the Republic of Singapore (1999 Reprint), Article 25(1) 3 Parliament (Privileges, Immunities and Powers) Act, s 3(1) 4 Peter Leyland, The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Hart Publishing 2012) 3 5 Kamaludeen Mohamed Nasir and Bryan S. Turner, The Future of Singapore: Population, Society and the Nature of the State (Routledge 2014) 39 6 Hussin Mutalib, ‘Illiberal Democracy and the Future of Opposition in Singapore’ (2000) 21 Third World Quarterly 313 7 Neo Hui Min, ‘Tiger beer, a musician and a whole lot of Singapore creativity’ The Straits Times (Singapore, 16 March 2005) 8 [2005] SGHC 216 9 Neo Chai Chin, ‘PAP adopts resolution to forge the way forward’ Today (Singapore, 9 December 2013)

THE NEED FOR CHECKS AND BALANCES AGAINST EXECUTIVE DOMINANCE In the Westminster model, there is tension between Parliament’s roles of supporting the executive of the day through MPs’ confidence and scrutinising it through alternative suggestions and questioning.10 Especially with a strong parliamentary majority, executive dominance tends to occur, where the current executive is able to largely hold sway over Parliament. The PM, as head of the executive, selects MPs (and, in the UK, occasionally House of Lords members) from his party to be ministers to form the government. Hence, under Montesquieu’s separation of powers, there is an incomplete separation of the three branches of the executive, legislature and judiciary in the Westminster model.11 This overlap between the executive and the legislature means that the executive is able to influence Parliament rather than Parliament acting as an independent check on the executive.

Where executive dominance is excessive, Parliament’s ability to scrutinise the executive is significantly eroded.

In the UK and Singapore, the first-past-the-post voting system, in which constituencies are won with the highest number of votes, typically contributes to a strong majority in Parliament because the votes of losing candidates in each constituency do not matter. For example, in the 2011 Singapore parliamentary elections, the PAP achieved 60.1% of the popular vote and won 93% of elected parliamentary seats.12 This is in contrast to voting systems where the vote share of a party is proportional to number of parliamentary seats won, such as proportional representation.

Not all MPs in the governing party may agree with all government policies. The mechanism of party discipline ensures that a majority government would pass its desired legislative agenda most of the time. In the Westminster system, party discipline is enforced through the party whip. In Singapore, the Government Whip ensures that governing party MPs vote according to the party line. Since 2002, the Government Whip may lift the whip to allow MPs free rein to vote on matters of conscience.13 Unlike in the UK where occasional backbench rebellions occur, governing party MPs in Singapore do not vote against the party line when the whip is in effect. However, it is notable that during the debate on the Population White Paper in 2013, there was speculation on whether MP Inderjit Singh had absented himself from the chamber during the vote on endorsing the White Paper after he expressed critical sentiments about it during a parliamentary speech.14 It would be interesting to observe whether this is a viable method for Singapore MPs to circumvent the Government Whip. If such incidents become more common, Singapore may well develop different gradations of whipping similar to the one-line, two-line and three-line whip of the UK House of Commons. Absence from voting when the three-line whip is in effect usually has serious consequences for UK MPs. Though the Singapore Parliamentary Glossary makes reference to the UK’s three gradations of whip, the whips in Singapore do not seem to draw such distinctions presently.15 10 Joint Committee on Conventions, Conventions of the UK Parliament (2005-06, HL 265-I, HC 1212-I) para 3 11 Until as recently as 2009, the UK judiciary and legislature were not as evidently separate as they are now. Prior to the Constitutional Reform Act 2005, the separation between the judiciary and the legislature was through self-restraint of judicial Law Lords who were concurrently members of the legislative House of Lords.

12 Kevin Brown, ‘Singapore opposition makes historic gains’ Financial Times (London, 8 May 2011). 93% is derived from 81 of 87 elected seats.

13 ‘Singapore lifts whip on orchestrated Parliament’ Agence France-Presse (Paris, 21 March 2002) 14 ‘Lift party whip for major policies: MP Inderjit Singh’ Straits Times (Singapore, 3 March 2011) 15 Parliament of Singapore, ‘Parliamentary Glossary - W’ <http:// www.parliament.gov.sg/publications/w> accessed 29 March 2015

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In effect, matters on the legislative agenda of the executive would almost certainly succeed during a majority government.

Since Singapore’s independence, the numbers of opposition MPs have never been sufficient to defeat a government bill. The current number of seven elected opposition MPs in Parliament is the highest since independence.16 Assuming attendance of all 99 MPs, the number of MPs voting against an ordinary bill would need to be 50 and above in order to defeat it. Hence, it can be said that executive dominance has been operational in Singapore over an extended period. Insofar as executive dominance ensures that the mandate of the people is efficiently carried out, an influential executive can be seen as compatible with democratic governance.

On the other hand, when the executive is not sufficiently and thoroughly held to account by the people’s elected representatives in Parliament, it may risk valuing efficiency and the accruement of executive power over the interests of the wider populace, not all of whom may have voted for the governing party.

While strict party discipline in Singapore’s Parliament gives the impression of unity, it also implies a monolithic governing party in which the party holds much greater power over MPs than the constituents do. A lifting of the whip on a greater number of issues would therefore strengthen the democratic nature of Parliament since MPs would have greater individual power to compel the executive to provide strong justifications for parliamentary decisions.

AN OFFICIAL OPPOSITION In the UK, the Leader of the Opposition, who leads the largest non-government party, draws a salary guaranteed in statute.17 The political culture of the UK is such that the Opposition is recognised as an essential part of Parliament to check and challenge the Government. There are 20 opposition days allotted in each parliamentary session during which one of the opposition parties decides the agenda.18 By contrast, in Singapore, the Leader of the Opposition draws no salary beyond that of backbench MPs and his position is not legitimised by statute. Indeed, the phrase “unofficial Leader of the Opposition” has been used in Parliament. 19 This reluctance to recognise the role of the opposition is likely attributable to having a dominant political party that has not experienced extensive periods in opposition. In addition, it is likely because Parliament has so far had a negligible number of opposition MPs. Nevertheless, it is difficult to make the case for the designation of an official opposition in the present political landscape. It is unknown whether the current largest opposition party, the Workers’ Party (WP), will hold on to their 2011 parliamentary elections gain of five seats in the Aljunied Group Representation Constituency (GRC). Even if they retain Aljunied GRC, it would be numerically unfeasible for them to fulfil the Shadow Cabinet role of the UK Official Opposition or to present themselves as an alternative government.

It may only be politically ripe to consider instituting an Official Opposition in Singapore if and when there is an alternation 16 Chun Han Wong, ‘Ruling Party Suffers Blow in Singapore By-Election’ Wall Street Journal (New York, 27 January 2013) 17 Ministers of the Crown Act 1937. The relevant provision now in force is the Ministerial and other Salaries Act 1975 s 1(1)(b).

18 UK Parliament, ‘Opposition Days’ <www.parliament.uk/site-information/glossary/opposition-days/> accessed 14 January 2015 19 Parliament of Singapore, ‘Parliamentary Glossary - L’ <http://www. parliament.gov.sg/publications/l> accessed 14 January 2015

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of governing parties. From a Western perspective, this lack of a viable opposition may signal an immature political scene in Singapore, which endangers the validity of democratic representation. However, it may be argued that a benevolent government with an overwhelming majority is able to chart an optimal course. In that case, the onus would be on the government to hold itself to account and demonstratively show the people that it has been, and will continue to be benevolent by opening itself up to scrutiny.

PRE- AND POST-LEGISLATIVE SCRUTINY The UK does not have a codified constitution, placing Parliament in a pre-eminent position of power. In 1885, A. V. Dicey first articulated the constitutional principle of parliamentary sovereignty, that Parliament is the supreme source of law in the UK. He wrote that Parliament “has, under the English constitution, the right to make or unmake any law whatever” and that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”20 Though there are limits to Dicey’s sovereignty of Parliament, the power of the UK Parliament is not abridged by a codified constitution, pre-legislative scrutiny by a constitutional council or post-legislative scrutiny by the Supreme Court.21 Rather, it is argued that part of these usually extra-parliamentary checks and balances are fulfilled within Parliament by the second chamber, the House of Lords.22 From the outset, Singapore inherited only the mechanisms of the “Commons House of Parliament” 23 eschewing the bicameral approach of the UK. Due to the existence of the Singapore Constitution, the supreme law in Singapore, the powers of Parliament are circumscribed by constitutionality. Even as Acts of Parliament may be struck down by judicial review, Singapore courts have largely been reluctant to do so. This was the case in Public Prosecutor v Taw Cheng Kong, where the High Court’s decision to strike down a statutory provision on the basis of unconstitutionality24 was overturned by the Court of Appeal.25 Other than the courts, the Presidential Council for Minority Rights (PCMR) conducts post-legislative scrutiny in Singapore.

Introduced in 1970, it scrutinises bills after the third reading in Parliament to ensure they do not discriminate against racial or religious minorities.26 Though the intention is admirable, in present political circumstances the PCMR has merely been advisory. Even if the PCMR finds a provision that is a “differentiating measure” in a bill and sends it back to Parliament to be reconsidered, a two-thirds majority vote in Parliament would still allow the bill to be presented for presidential assent “notwithstanding the opinion of the Council”.27 Also, the specification of racial or religious minorities in a council ostensibly named “Presidential Council for Minority Rights” suggests that these are the only minorities that should come under protection. Other minorities who lack state-sanctioned protection through the council and yet have disproportionately low power in society include sexual minorities and people with disabilities.

20 A. V. Dicey, Introduction to the Study of the Law of the Constitution (first published 1885, Liberty Classics 1982) 3-4 21 Dawn Oliver, ‘Reforming the United Kingdom Parliament’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (7th edn, 2011) 181 22 Id., 183 23 Parliament (Privileges, Immunities and Powers) Act, s 3(1) 24 [1998] SGHC 10 25 [1998] SGCA 37 26 Constitution of the Republic of Singapore, supra n2, Article 78 27 Id., Article 78(6)(c)

A significant modification to the Westminster model in Singapore was the introduction of non-elected Nominated Members of Parliament (NMPs) in 1990 to provide independent and non-partisan views.28 Under the scheme, a specially constituted parliamentary Select Committee selects NMPs based on suggestions from the public.29 It has been argued that this co-optation or recognition of dissenting voices is an attempt to moderate discourse.30 While NMPs provide more diverse voices in Parliament, their views may not necessarily be incorporated into legislation. Hence, it is gratifying that the Senior Minister of State for Finance eventually accepted NMP Chia Yong Yong’s amendment to the Pioneer Generation Fund Bill proposed during the committee stage although Parliament had voted against it.31 That NMP Chia exercised an aspect of parliamentary procedure that had not been used in 10 years is demonstrative of how NMPs are able to contribute to Parliament through their expertise and differing perspectives. A greater receptivity to the application of such checks and challenges would gradually increase the public’s trust in the utility of what Thio Li-ann calls the “quasi-opposition”.32 Parallels can be drawn between Singapore NMPs and the UK House of Lords. Though both features constitute instruments of scrutiny within Parliament, it should be noted that NMPs sit within the same chamber as elected MPs while the House of Lords is an autonomous entity separate from the House of Commons. Both may include members with experience or expertise in specialised fields. Both have also been criticised for their non-democratic nature. The need for House of Lords reform was recognised in the House of Lords Reform Bill 2012, which grew out of 2010 manifesto promises of both the Conservative33 and the Liberal Democrat34 coalition partners.

The bill proposed for the House of Lords to become mostly elected. After facing opposition from nearly 100 Conservative MPs, the British Government was forced to withdraw the bill.35 Putting aside concerns about democracy, compared to the NMP scheme, the independence of the House of Lords from the elected parliamentary chamber allows it to conduct far more in-depth scrutiny, both in terms of poring over legislation and in conducting Select Committees that produce authoritative reports on matters of public concern.36 Given the existence of post-legislative scrutiny, doubts surrounding the non-elected nature of NMPs and the recognised need for UK House of Lords reform, it is a fruitless exercise to consider the introduction of a second chamber in Singapore.

Even so, Singapore would do well to improve both pre- and postlegislative scrutiny to increase the trust in and accountability of Parliament.

28 Parliament of Singapore, ‘Members of Parliament’ <www.parliament.gov.sg/members-parliament> accessed 14 January 2015.

29 Constitution of the Republic of Singapore, supra n2, Article 39(1) (c) and Fourth Sch 30 Beng-Huat Chua, Communitarian Ideology and Democracy in Singapore (Routledge 2002) 176 31 Tham Yuen-C, ‘Making laws: Keep watch at every stage of process’ Straits Times (Singapore, 13 December 2014) 32 Thio Li-ann, ‘Rule of Law within a Non-Liberal ‘Communitarian’ Democracy: The Singapore Experience’ in Randall Peerenboom (ed), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (Psychology Press 2004) 201 33 Conservative Party, ‘Invitation to Join the Government of Britain’ (13 April 2010) 67 34 Liberal Democrats, ‘Liberal Democrat Manifesto 2010’ (14 April 2010) 88 35 ‘Nick Clegg confirms Lords reforms have been officially withdrawn’ BBC (London, 3 September 2012) 36 Colin Turpin and Adam Tomkins, British Government and the Constitution (7th edn, Cambridge University Press 2011) 650, citing Rodney Brazier, Ministers of the Crown (Clarendon Press 1997) 259

SELECT COMMITTEES AND GOVERNMENT PARLIAMENTARY COMMITTEES In the UK House of Commons, about 30 select committees are appointed in accordance with parliamentary standing orders,37 including 19 departmental select committees shadowing government departments and associated bodies by examining their expenditure, administration and policy.38 In 1979, these departmental select committees were introduced into the standing orders39 as part of reforms.40 Since 2010, chairs of House of Commons select committees are elected by the whole House while select committee members are elected within parties, both by secret ballot.41 Select committee sessions hearing oral evidence, which includes evidence given by civil servants, special advisers, MPs and ministers, are open for public viewing with few exceptions.42 The role of select committees is taken seriously; to the point that membership is structured as an alternative parliamentary career for backbenchers. To that end, the role of select committee chair is made attractive by an additional salary.43 In Singapore, there are seven standing select committees and they are not tagged to government departments.44 The Committee of Selection, itself a select committee consisting eight MPs, appoints members to the other select committees. Given that the proportional makeup of select committees reflects the party balance in Parliament, governing party MPs numerically dominate select committees in Singapore. Like in the UK, the Singapore Parliament also establishes ad hoc select committees temporarily for particular purposes.45,46 As of the time of writing, the last occasion that a select committee was established to examine a bill was in 2004.47 In 2014, requests for two bills to undergo scrutiny by an ad hoc select committee were turned down because the Government decided that feedback from the Government’s feedback channel, REACH, was sufficient.48 Opposition MP Pritam Singh opined that select committee scrutiny adds “much-needed civility to public discourse”.49 The closest equivalent Singapore has to departmental select committees are party organs known as Government Parliamentary Committees (GPCs) comprising only governing party members.50 Their function “to scrutinise the legislation and programmes of ministries”51 seems analogous to that of the UK’s departmental select committees. Eleven GPCs are listed on the PAP website52 and GPC sessions are not open for 37 Id., 616-617 38 Meg Russell and Meghan Benton, Selective Influence: The Policy Impact of House of Commons Select Committees (UCL Constitution Unit 2011) 11 39 Id., 10 40 Turpin and Tomkins, supra n36, 617 41 Oliver, supra n21, 175 42 UK Parliament, ‘Watch committees’ <www.parliament.uk/visiting/ visiting-and-tours/watch-committees-and-debates/committees/> accessed 14 January 2015 43 Turpin and Tomkins, supra n36, 619 44 Parliament of Singapore, ‘Select Committees of Parliament’ <www. parliament.gov.sg/select-committees-parliament> accessed 14 January 2015 45 Turpin and Tomkins, supra n616 46 Parliament of Singapore, supra n44 47 Parliament of Singapore, ‘Publications - Select Committee Reports’ <http://www.parliament.gov.sg/publications-select-committee-reports> accessed 29 March 2015 48 Tham Yuen-C, -C, ‘Views on scrutiny of new laws in the House’ The Straits Times (Singapore, 11 March 2015) 49 Id. 50 Education Committee, Great teachers: attracting, training and retaining the best (2010-12, HC 1515-I) 72 51 Parliament of Singapore, ‘Parliamentary Glossary - G’ <www.parliament.gov.sg/publications/g> accessed 14 January 2015 52 People’s Action Party, ‘12th Parliament of Singapore Government Parliamentary Committees’ <www.pap.org.sg/about-pap/whos-who/govt_par-

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public viewing.53 MPs within the GPC on Education reported that they “felt able to speak freely and criticize Ministers when necessary”.54 Since these are closed-door sessions, the public and the press are unable to gauge how well the GPCs’ role of scrutiny is being performed. From the available information, GPCs do not call for evidence but draw on members’ backgrounds and areas of expertise to contribute feedback.

The UK’s select committees are on the whole more transparent in their operation than Singapore’s GPCs, partly because they are accountable to Parliament rather than part of a political party.

While Singapore’s governing party is entitled to conduct its party business as it sees fit, it does not have a monopoly on ideas for feedback and suggestions to government departments. It would be progressive to set up a more transparent and inclusive set of departmental select committees within Parliament and allow for more bills to be scrutinised through ad hoc select committees.

Though the governing party would still have the lion’s share of members within these select committees, MPs of all parties would become more in touch with day-to-day matters of government.

Such a reform would encourage MPs of all parties to empathise more with the governing party’s grapple with difficult decisions as well as herald an increase in the constructiveness of Singapore politics.

CONCLUSION As Singapore enters its 50th year of independence, it is timely for Singaporeans to reflect on the purpose of our Parliament, the heart of our democracy. We should contemplate whether it should emulate aspects of the UK Parliament from which it was derived or carve its own path that may better reflect our sociopolitical context.

The need for Parliament to be accountable should not be dismissed as Western ideology. In a lecture on good governance in which Singapore was held up as a yardstick, Singapore’s Ambassador-At-Large Tommy Koh included the rule of law and an absence of corruption among the principles of good governance.55 Parliament should judiciously consider reforms that facilitate accountability in order for Singapore to clearly fulfill these principles and hence continue as a model of good governance. Independent of whether a country identifies more with Western or Asian values, accountability is essential to demonstrate good governance.

Singapore draws some political and legal legitimacy from its use of the Westminster model of parliamentary democracy. However, just as Western values may be unsuitable to be transplanted into relatively conservative Asian societies, the selective use of most elements of the Westminster model does not make Singapore a liberal democracy like the UK. The extent to which Singapore is seen as a democracy in the eyes of the world depends not only on its commitment to uphold the procedures and values of the Westminster model but also its policies and legislation impacting the socio-political sphere beyond Parliament. The continued evolution of Parliament is likely to be instrumental to how Singapore navigates difficult issues including the development of civil society organisations, freedom of speech, detention without trial, and corporal and capital punishment. liamentary> accessed 14 January 2015 53 Education Committee, supra n50, 74 54 Id. 55 Tommy Koh, ‘The Principles of Good Governance’ (Workshop on Good Governance, Bangkok, 7 October 2009) <http://lkyspp.nus.edu. sg/wp-content/uploads/2013/04/sp_tk_The-Principles-of-Good-Governance_071009.pdf> accessed 1 March 2015

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JUDICIAL REVIEW IN SINGAPORE AND ENGLAND: A COMPARISON

By Patrick Yeo Judicial review has developed differently in England and Singapore, even with our similar legal backgrounds. The article examines the distinguishing factors in each jurisdiction and the possible future developments.

In the milestone case of Anisminic v. Foreign Compensation Commission,1 English judges asserted their jurisdiction to judicially review an executive decision. Their successors have since interfered in numerous ways to ensure that Parliament and public bodies do not overstep their “rightful boundaries” of competence. In Anisminic, House of Lords starkly ignored an ouster clause that should have excluded them from judging the validity of an Act. Singaporean courts have refused to take this line. However, recent cases2 and speeches by judges indicate that a different approach might be taken in that jurisdiction. Then Chief Justice Chan Sek Keong, in an extra-judicial lecture to Singapore Management University students in 2010, referred to a “sense of unease about the dormant state of judicial review in Singapore”3. As such, now is a ripe time to examine how judicial review differs in both jurisdictions, why they are different and how they will continue to develop.

Both Singapore and England followed a similar style of government; composing of the Legislature, the Executive and the Judiciary. This basic legal understanding soon gives way to multifarious questions regarding the independence of each body, their overlap and the rise of hybrid systems. Ultimately, however, the law student is concerned with one fundamental question: how do these bodies function to uphold the rule of law whilst preventing arbitrary power exercised by any one body? Through judicial review, the judiciary is able to prevent 1 2 3

[1967] 2 AC 147 Public Prosecutor v. Yong Vui Kong [2009] SGHC 4 Chan Sek Keong, From Angst to Empathy [2010] 22 SAcLJ

unjustified extensions of power. The term “justified” is key, for judges will have to explain why they limit the sovereignty of the other bodies. In this, they refer to constitutional safeguards, natural law, common law rights and constitutional rights amongst others. Singaporean courts have steadfastly declined the role of judicial review. In contrast, English Courts have sometimes been willing to reinterpret the legislature or even to hold certain Acts and administrative actions as invalid.

Differences in the Constitutions and backgrounds of Singapore and England provide clues as to why stances toward judicial review might differ across the two nations Although Singaporean laws arguably reflect its English heritage, there are several distinct differences between the two jurisdictions.

Fundamentally, England has no codified constitution while Singapore possesses one. A codified constitution sets out the demarcation between the bodies and their functions. It is thus easier to define ultra vires attempts at legislation or judgment.

Importantly, this means Singaporean bodies are given power by the Constitution. However, the fundamental understanding that “Parliament legislates, Courts interpret” remains the same across the jurisdictions. English administrative law is also affected by European jurisdiction. Its influence has been seen most starkly in the European Communities Act 1972 and the Human Rights Act of 1998 (HRA). In contrast, Singaporean law is under the direct mandate of local bodies. Together, these circumstances have produced different flavours of judicial review in Singapore and England.

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This article aims to examine the similarities and differences in the two jurisdictions in the area of judicial review. It will examine the reasons for the dichotomy between the two jurisdictions including inter alia the existence of a Constitution in Singapore, the role of the EU law and the politico-social circumstances that are unique to each nation. It will also attempt to categorise and rate the effectiveness of the state judicial review in the jurisdictions. The article ends with a prediction on the development of judicial review in each jurisdiction.

THE PRESENT STATE OF JUDICIAL REVIEW Judicial review refers to the process by which Courts, or similar judicial bodies, review administrative actions by other public bodies. The process concludes with adjudging the validity of such actions in accordance to the rule of law. Principally, the purpose of judicial review is to examine and critique the processes of coming to a decision. This is simpler in the Singaporean jurisdiction where the Constitution of the Republic of Singapore4 clearly sets out and defines the duties of public bodies. Thus, Part VIII of the Constitution sets out the definition and duties of the Courts and similar bodies in Singapore. The written constitution of Singapore thus leads to a more clearly defined role for each administrative body. Courts are certain of their duties and functions as their jurisdictional limits are clearly defined. In contrast, English courts are traditionally compelled by precedent and led by jurisdictional discretion, even where Parliament may attempt to legislate against their inclusion.

Because of such measures, English courts have a greater measure of flexibility and interpretation than their Singaporean counterparts. This essay will go on to identify distinct ways in which this dichotomy is apparent.

THE DISTINGUISHING FACTORS The Effect of a Constitution Firstly, the formalization of distinction leads to more certain jurisdictional grounds for Singaporean Courts. This can be clearly illustrated in the Singaporean case of Yong Vui Kong,5 where the Court considered the process by which clemency could be granted to a drug trafficker. Steven Chong J ultimately referred to the Singapore Constitution in coming to his decision to reject an application for review. This is in stark contrast to English courts, which sees judges intervening in varied cases.

In a similar challenge to the separation of powers, R. v. Sectary of State for the Home Department (Ex Parte Venables) 6 was an application by appellants who claimed that the Home Secretary overstepped boundaries in sentencing. Unlike the Singaporean court, which relied on a written constitution, the House of Lords referred to “constitutional rights” and the “separation of powers” and held that the Home Secretary was carrying out a judicial function. While the Singaporean Constitution was able to resolve the question quickly by clearly defining the roles of each public body, the informal distinction between public bodies under English law requires much more substantive reasoning on the part of English courts.

More disturbingly, the discretion allowed to English courts sees judicial review applied in varied cases. Thus, CCSU v. Minister for the Civil Service 7and R v. Brent London Borough ex parte Gunning 8 seem to be in direct contradiction. The latter set down a case that the decision-making bodies, normally the legislature 4 5 6 7 8

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Constitution of the Republic of Singapore (1999 Reprint) Supra n2 [1997] UKHL 25 [1983] UKHL 6 [1986] 84 LGR 168

or executive, have a duty to consult affected parties at a formative stage. These principles were promptly disapplied in the former case. Judicial discretion results in a large grey area where the jurisdiction of the courts hangs on particular facts and opinions.

Thus, the lack of a constitution means that there are less certain grounds for judicial review in England.

Impact of Political History and Tradition Secondly, the socio-political background of the two nations have been cited are a reason for the differences in the use of judicial review. Chen Zhida writes of a prevailing belief in a “government by honourable men”9 held by the courts in Singapore. Indeed, a government white paper expounded on this concept, advocating that the moral certainty of administrative leaders meant that there was less worry that power would be abused.10 While Chen qualifies this by stating that “all powers…have limits”, it is hard to reconcile this belief with the underlying theme that our watchers need not be watched. Commentators such as Chen have used this belief to assert that the faith that the judiciary place in the other administrative bodies is a reason why Singaporean law is different and not subject to “fanciful hypotheses”11. In the case of Vellama d/o Marie Muthu v. Attorney-General,12 the phrase “shall be filled by election”, under Article 49(1) was interpreted broadly

by Pillai J to mean that there was no prescribed time period for election. The Prime Minister was held to have full discretion as to the holding of the election. What emerges is the concept that governments have little or no restrictions, because it is assumed that leaders of “moral authority” will control themselves. With the courts unwilling to question the actions, the executive and legislature are capable of a broad interpretation of powers.

However, the flipside to this narrative is the great reliance on the legislature’s political and social acumen. Where there are no legal boundaries, the political and social mandate of the body gains greater importance. At its most realistic: Parliament, although technically able to, will not legislate to kill all blue-eyed men. At its most absurd, a legislature that is deeply unpopular will provoke social upheaval. A legal route may be the medium through which the government is held to account and its absence is indicatory that the social mandate of the people is felt more deeply and dangerously. It does not mean that Parliament can do whatever it wants.

Jun Zi and Parliamentary Supremacy The Singaporean ideal of an inviolable government of honourable men is worth comparing to England’s doctrine of parliamentary supremacy. Alison Young has argued that the rule of law in England is nothing more than an uneasy alliance13 between the administrative bodies, characterised by mutual respect.

Similarly, Singaporean jurist Thio Li-Ann, in critiquing the junzi narrative, refers to a “common sense, realistic approach” that emphasises the courts and legislature working together to undergird the legal order.14 While not couched in flowery terms such as the junzi,15 Parliamentary sovereignty essentially means what Chen described: Parliament is ultimately powerful.

9 Chen Zhida, The Nature of Judicial Review in Singapore [2013] 31 Sing L Rev 10 White Paper on Shared Values (Parliament of Singapore, Cmd 1 of 1991) 11 Yong Vui Kong, supra n2 12 [2013] SGCA 39 13 Dawn Oliver, “Parliamentary Sovereignty: A Pragmatic or Principled Doctrine?” (UK Constitutional Law Association, 3 May 3 2012) <http:// ukconstitutionallaw.org/2012/05/03/dawn-oliver-parliamentary-sovereignty-a-pragmatic-or-principled-doctrine/> accessed 8 March 2015 14 Thio Li- Ann, The Theory and Practice of Judicial Review of Administrative Action in Singapore: Trends and Perspectives [2013] 22 SacLJ 469 15 Chen, supra n9

While British courts may recognise constitutional rights, Parliament is technically able to legislate against those rights if it does so unambiguously and with express words.16 Even recent developments have shown that the idea of an unfettered Parliament is alive. Section 4 of the Human Rights Act 1998 restricts courts to a declaration of incompatibility where domestic statutes are not in line with ECHR commitments17, leaving the offending act intact and applicable to the parties bringing the case. Instead, it is left to Parliament alone to effect any changes.

Parliament has chosen not to do so in the case of voting rights for prisoners, contradicting domestic and international courts.18 With a parallel to the importance of social mandate discussed earlier, the facts of Hirst seem doubly important. Surveys had shown that the majority of the populace did not support voting rights for prisoners. 19 This domestic social view was not shared by the ECHR community. The legislature thus had social mandate but not a legal one. The absolute importance of the former allowed it to safely ignore the latter, upholding the view of the “unfettered Parliament”. Doubtless this would not have been the case if its decision was deeply unpopular. Just like junzi, the sovereignty of Parliament depends on the trust and mandate of the populace.

Judicial Review and Legal Discourse However, the legal impetus for judicial review in England differs from its Singaporean counterparts with its belief in legal dialogue. This may be defined as the discourse, through case precedents and legislated statutes, through which the bodies review each other. The English legal system has more in the way of legal discourse than the Singaporean system. In Singapore, Parliament legislates and the Courts enforce. This is seen through the predominant use of ouster clauses in Singaporean Acts. An example can be found in Section 149 of the Singapore Constitution, which circumvents any action by the courts with regard to specific action by Parliament.20 Chen believes this can be classified under the “Green Light” theory of law. Under this definition, the goal of the Constitution was to “enhance… collective liberty” – a result-oriented design. Thus law was not to be autonomous from politics: “the administrative state was…a positive attribute to be welcomed”.21 In effect, it is the belief that the legal system is not a separate entity but one that should function under the same goal of maximizing utility, whether it be liberty or otherwise. The problem with this definition is that it rejects the concept of the judiciary and instead envisages a contiguous body. This undermines the system of checks and balances and instead gives too much prominence to an already heavy-handed and, under the Westminster system, fused executive-legislature. Of course, this falls under the junzi belief that the contiguous system is already led by moral figures.

In contrast, the English legal system has a measure of legal dialogue. English courts are more willing to engage in discourse with lawmakers, a process that has become accelerated since the Human Rights Act. In Anisminic the House of Lords made inroads on the use of ouster clauses. The clause that “shall not be called into question in any court of law”, was held by a majority of 3 judges to not preclude the courts role in reviewing the Act. In effect, even where legislation rejected judicial review, English courts were still willing to flex their muscle in reviewing the certain acts and engaging in legal dialogue. In

16 Thoburn v. Sunderland City Council [2003] QB 151 (Laws LJ) 17 Human Rights Act 1998, s 4 (2) 18 Hirst v. United Kingdom [2005] ECHR 681 19 James Faulkner, “Public say no Prison Votes” (YouGov UK, 5 November 2012) <http://yougov.co.uk/news/2012/11/25/public-says-no-prisonvotes> accessed 30 March 2015 20 supra n2, Article 149 21 Chen, supra n9

recent times, Section 3 of the HRA places a duty on courts to interpret domestic legislation (whether before or after 1998) as compatible with ECHR rights, wherever possible. In effect, courts are now reading and reinterpreting old laws in the light of new obligations. In this, we see a process of legislation by the legislature and reinterpretation by the judiciary: the roots of legal discourse. This comes with the realisation of Parliamentary supremacy - where Westminster retains the ultimate power to legislate expressly against certain rights.

Ultimately, the differing stances in judicial review arise not from a socio-political difference in the cultures and legal traditions of Singapore and England. Instead, it is derived from the existence of a written constitution in Singapore and the resultant need for legal discourse in England. The latter’s multifaceted constitutional development and absence of a clear-cut distinction has resulted in a more well-developed and historical judiciary that is more willing to engage Westminster than their Singaporean brethren are in challenging their Parliament.

THE FUTURE OF JUDICIAL REVIEW Changes due to Britain’s commitment to the ECHR and recent events in Singapore have raised the possibility that the role of judicial review in these two jurisdictions might be subject to further change. As late as 2010, Chan CJ brought up the possibility that ouster clauses might contravene Article 93 of the Singapore Constitution, which vests the judicial power of Singapore in the Supreme Court.22 In this, we see a growing recognition amongst the judiciary of their possible validity in the rule of law.

Indeed, Chan LJ, in the same lecture, raised questions about the “dormant state of judicial review”. It is arguable that a more vocal public would supplement the judiciary’s conservatism. Recent cases such as Lim Meng Suang v. Attorney General,23 concerning the infamous section 377A of the Penal Code, have raised more public insight and comment into the legal process. A more vocal public could very well have the impetus to redefine the boundaries of a Court’s willingness to review legislation.

A more solidly defined change is seen in the English jurisdiction.

The implementation of the HRA 1998 and continued influence from Strasbourg have seen courts in England more willing to engage in review. Cases such as R v Secretary of State for the Home Department (Ex Parte Anderson)24 are evidence of this initiative.

In this case, the House of Lords signified an unwillingness to “depart from…principles laid down” by the European Court of Human Rights. It further held certain actions of the Home Secretary to be incompatible with the ECHR. In effect, the HRA has created a new process by which a just decision is reached: it must be compatible with the ECHR. Judicial review has adapted to reflect the need for this process to be recognised when the Executive or the Legislature come to a decision. With the advent of the HRA and the growing use of Sections 3 and 4, one can expect a more vocal Supreme Court in England. It can be expected that it will continue the tradition of legal discourse - challenging, reinterpreting and redefining laws in that jurisdiction. The entrenchment of Human Rights in the UK may see more cases being brought to English courts and a growing impetus for them to review decisions made by the legislature.

Poole and Shah note that a substantial number of cases brought before the courts have been concerned with Human Rights.25 This should be viewed in conjunction with the European Court’s 22 23 24 25 MLR 79

Chan, supra n3 [2014] SGCA 53 [2002] UKHL 46 Poole and Shah, The Law Courts and Human Rights (2011) 74

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view that “EC law trumps domestic law”26. With the former’s relatively greater emphasis on the modern conception of human rights, it seems likely that the quantity, if not quality, of cases ripe for judicial review is set to increase in England. It is a tantalising possibility that judicial review would be set to increase in this jurisdiction, if only from the sheer number of cases before the courts.

In conclusion, one sees that the differing stances toward judicial review in England and Singapore arise mainly from the existence of a written constitution in the latter jurisdiction. The presence of legal dialogue in England further contributes to this difference. In contrast, the notion that different socio-politico circumstances play a major role in affecting the relationship between the administrative bodies has been demonstrated to be false. Ultimately, the English courts are more willing to pursue judicial review because of their more extensive history and an absence of clearly defined limits on their roles. In recent times, we have seen a growing awareness of judicial review in Singapore and a more vocal public, which may lend democratic mandate and impetus. In England, similarly, recent events have empowered courts to pursue greater review if they so choose. In time, we may see a growth of judicial review in both jurisdictions.

26 Craig P., ‘Britain in the European Union’, in Jowell and Oliver (ed.),The Changing Constitution,5th edn., Oxford, Oxford University Press, 2004, pp. 88-116

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=A BLESSING OR LIABILITY?

By Michelle Kang With children oft-viewed as blessings, the proposition that they can be liabilities continues to be highly controversial. This article examines the legal and ethical difficulties behind allowing the â&#x20AC;&#x2DC;birth tortsâ&#x20AC;&#x2122;.

Image: Flickr CC @ Phalinn Ooi

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INTRODUCTION Having a child is typically viewed as a joyous occasion, marked by celebrations and congratulations across cultures. However, this stereotypical view where babies are regarded as blessings is tested in the “birth torts” cases such as McKay v. Essex Area Health Authority1 and JU v. See Tho Kai Yin,2 wherein parents bring an action against medical practitioners on behalf of themselves and/ or their child, alleging that but for negligent medical treatment, the child would have been aborted or not been conceived. Instead of being a blessing, a nightmarish scenario arises whereby these unintended children are now seen as liabilities, bringing along a host of vexatious legal and ethical dilemmas, particularly where such children are disabled.

The article will focus on the claims of wrongful life and wrongful birth, opening first with a brief definition, followed by an overview of the current legal position generally. At present, most legal systems do not permit wrongful life claims. Conversely, while there has been some opposition to wrongful birth claims, this has been to a lesser degree.

Subsequently, it will consider why many jurisdictions have been averse to allowing such claims, focusing particularly on the jurisprudence of Singapore, the UK, and Australia. In analysing the various legal and ethical arguments advanced by different judges, the article will contend that the present position is unsatisfactory, not least because it lacks a clear and consistent rationale. Thus, it will argue in favour of allowing both types of claims on the basis that both wrongful life and wrongful birth claims are consistent with the general principles of negligence in tort law, and the reasons cited by the judges in refusing such claims, while not wholly groundless, are fundamentally unpersuasive.

Finally, it will briefly contemplate the potential broader social implications of allowing such claims, looking in particular to the experience of Israel, which allowed both wrongful life and wrongful birth claims from 1986 up until 2012, when the Israeli Supreme Court abolished the former legal avenue for redress.

WRONGFUL LIFE AND WRONGFUL BIRTH – DEFINITIONS AND PRESENT LEGAL POSITIONS While wrongful life and wrongful birth claims are often lodged concurrently, it is necessary at the outset to establish that these are two distinct, albeit related, claims. Wrongful birth claims are lodged by parents, alleging that but for the negligent medical treatment, they would have aborted the child or avoided conception altogether. The injury identified in such cases is the parents’ loss of choice and autonomy over their reproduction decisions,3 and such claims have been lodged in respect of both healthy and disabled children.

In contrast, wrongful life claims are brought on behalf of the child. Thus far, it has only been invoked where a child is disabled, and damages are sought in respect of the damage caused by the disability, such as pain, suffering, and any additional financial costs which can be attributed to the disability; for instance, the need for specialized nursing care. Since the alleged negli1 [1982] 1 Q.B. 1166 2 [2005] 4 S.L.R. 96 3 Wendy F. Hensel, ‘The Disabling Impact of Wrongful Life and Wrongful Birth Actions’ [2005] Harvard Civil Rights- Civil Liberties Law Review 141, 142

gence did not actually cause the child’s impairment, but instead allowed him to come into existence, the operable injury is the child’s existence, and non-existence is deemed to be preferable.4 The availability of such claims is mixed across jurisdictions. In the UK, wrongful birth claims are not permissible insofar as parents cannot recover the costs of raising a healthy child (McFarlane v. Tayside Health Board).5 More recently, this approach was endorsed by Choo J in ACB v. Thomson Medical Pte Ltd in Singapore, albeit obiter.6 However, the English Court of Appeal permitted the additional costs that were attributable to the unintended child’s disability in Parkinson v. St James and Seacroft University Hospital NHS Trust.7 Furthermore, whilst the House of Lords unanimously upheld the ruling in McFarlane, it awarded a “conventional” sum of £15,000 in Rees v. Darlington Memorial Hospital NHS Trust,8 which had been first suggested by Lord Millet in McFarlane. Nonetheless, it must be noted that this was awarded ostensibly to redress the legal wrong the parents had suffered in being deprived of their freedom to limit the size of their family,9 as opposed to being a partial recovery of child-rearing expenses. In summary, the present position is that the only recoverable costs are those associated with pregnancy and the extra costs attributable to the child’s disability.

In contrast, the High Court of Australia rejected McFarlane in Cattanach v. Melchoir,10 holding by a bare majority that wrongful birth claims were admissible. Thus, upbringing costs are recoverable, and it is likely that pregnancy costs would similarly be recoverable as well. However, it must be noted that this position has been reversed by legislation in certain states.11 Conversely, the position on wrongful life appears to be more consistent; the English courts have clearly established a prohibition on wrongful life claims (McKay). However, it must be noted that a disabled child may still be able to bring a claim under the Congenital Disabilities (Civil Liability) Act 1976. Similarly, the Australian courts also held that wrongful life was not actionable in Harriton v. Stephens.12 In Singapore, the Court of Appeal opted to follow McKay in JU, holding that wrongful life claims were not permissible. However, given that this was discussed in a summary fashion in the High Court, the matter might be considered afresh in future proceedings.

LEGAL AND ETHICAL ARGUMENTS AGAINST ALLOWING CLAIMS In McFarlane, the House of Lords held that the claim for child-rearing costs was one for pure economic loss. In applying the normal rules of tort applicable to such claims, it held that it would not be fair, just or reasonable to impose a duty of care in the circumstances. However, while the decision was unanimous, their Lordships did not speak with a single voice, leading to some incongruent reasoning. Below, four rationales advanced by their Lordships in holding that a duty of care ought not to be imposed will be considered.

4 Id., 143 5 [2000] 2 A.C. 59 6 [2015] SGHC 9 at [16] 7 [2001] EWCA Civ 530 8 [2003] UKHL 52 9 Id., Lord Millett at [123] 10 [2003] HCA 38 11 See for example s49A and 49B, Civil Liability Act 2003 (Queensland) 12 [2006] HCA 15

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First, their Lordships ascribed to the moral view that the birth of a child should be regarded as a blessing and joy, not a harm. As stated by Lord Millett, “if the law regards an event as beneficial, plaintiffs cannot make it a matter for compensation merely by saying that it is an event they did not want to happen. In this branch of the law at least, plaintiffs are not normally allowed, by a process of subjective devaluation, to make a detriment out of a benefit.”13 Human life possesses a unique value, and it is impossible to calculate the benefits attendant on the existence of a child. Similarly, in ACB, Choo J opined obiter that “no parent would want her child to grow up thinking that she (the child) is a mistake. Were the plaintiff to succeed in her upkeep claim … every cent spent … will remind [the child] that it was money from a compensation for a mistake.”14 It is abhorrent for children to grow up thinking that their very existence was a mistake.

However, such reasoning has been criticized. Notably, on the facts of McFarlane, Mr McFarlane had intentionally sought to be sterilized. As Jackson pithily states, “where a patient has decided to have an operation in order to irrevocably remove the possibility of conception, it seems perverse to argue that they should regard the failure of this surgery as a blessing.”15 Furthermore, as noted by the majority in Cattanach, there should be no set-off between financial costs and emotional benefits, since these affect different interests. Thus, no offsetting is permissible on normal principles.16 To blatantly assume that every child is a blessing is also somewhat counter-intuitive given the widespread prevalence of birth control. The vast majority of people obviously do not subscribe to a notion that every child is a blessing and few believe in “unlimited child bearing”. That some take extreme and permanent steps to prevent conception would suggest that they have made an assessment that given their circumstances, having an additional child, even a healthy one, would not benefit them overall. This is perhaps most apparent where the child is disabled, which was openly acknowledged by Hale LJ in Parkinson.17 Conversely, the suggestion that a child’s feelings would be hurt were she to subsequently find out that her birth was originally unwanted was deemed to be unpersuasive by Kirby J in Cattanach. Instead, the parents could explain that the key issue was money, rather than love or preservation of the family unit; the claim was brought simply to impose the financial consequences of the negligence on the tortfeasor.18 Second, Lord Clyde suggested that the level of damages that would be awarded would be out of proportion to the wrongdoing of the doctor, given that raising a child is a relatively expensive endeavour.19 However, as Herring points out, this argument is typically not applicable in tort law; A driver who takes his eyes off the road for mere seconds but causes a car crash which renders a pedestrian paraplegic has no defence in arguing that the amount of damages required to compensate the victim is disproportionate to the degree of negligence. 20 Weir suggests that the true justification behind the disproportionality argument is that of public policy; each time a claim un13 At 112 (n 5) 14 At [16] (n 6) 15 E Jackson, Regulating Reproduction: Law, Technology and Autonomy (Oxford, Hart Publishing 2001), pp 35-36 16 Gleeson CJ at [90] (n 10) 17 At [89]-[91] (n 7) 18 At [145] (n 10) 19 At 106 (n 5) 20 J J W Herring, Medical Law and Ethics (5th ed, Oxford University Press 2014), p 289

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der the birth torts is allowed, scarce resources which could have been used to treat patients are transferred to “reluctant parents for the upbringing of healthy brats”.21 Given that damages could potentially be substantial, allowing such claims might have severely implications for rationing, particularly in a publicly funded system such as the UK’s National Health Service. Indeed, in McFarlane, Lord Steyn stated that “from the vantage point of distributive justice”, allowing recovery for child-raising expenses would not be a “just distribution of burdens and losses among members of a society.” He further opined that were commuters on the London Underground asked, “Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, i.e. until about 18 years?”, “an overwhelming number of ordinary men and women would answer the question with an emphatic ‘No’.”22 However, this view was rightly criticized by Kirby J in Cattanach as being premised on controversial values and unsupported assumptions. In particular, Lord Steyn’s reference to the commuters on the Underground was singled out, with Kirby J describing it as a fictional character “elevated to a modern Delphic oracle” ostensibly to “avoid the appearance of unreliable personal opinions” and create a veneer of objectivity23. In truth, short of an extensive survey of the opinions of the British public, it would be impossible to confidently assert that the majority of citizens would refuse to allow compensation for child-rearing costs. As noted by Callinan J, a judge’s “distaste” cannot be allowed to override legal principle.24 As regards rationing concerns, Cattanach could perhaps be distinguished on the basis that the defendant was a private practitioner. Thus, third party insurance was possible, and there was no fear that public authorities would be overburdened. However, it must be noted that this was explicitly considered and rejected

by Lord Scott in Rees.25 More generally, to exempt doctors from liability would shield them and hospitals from the consequences of their negligence, and render their duties void of substantive content.26 Third, Lord Hope suggested that it was impossible to calculate the quantum of damages since the benefit of a child is incommensurable. Thus, one could not establish that the maintenance costs outweighed the benefit of having the child. Notably, Hale LJ’s “deemed equilibrium” of benefits and burdens of a healthy child which then became “out of kilter” where a disabled child required extra costs to raise in Parkinson27 was explicitly rejected in Rees.28 Fourth, it was suggested in Rees that in the interest of promoting legal certainty, it was undesirable to reverse a House of Lords decision (McFarlane) which was only four years old.29 Undoubtedly, maintaining a degree of legal certainty such that individuals may plan their lives accordingly is a key component of the rule of law, and underpins doctrines such as stare decisis. However, 21 Weir (2000b: 131) 22 At 82 (n 5) 23 At [135] (n 10) 24 At [296] (n 10) 25 At [133] (n 8) 26 McHugh and Gummow JJ at [59], Kirby J at [149] & [179] Callinan J at [295] (n 10) 27 At [87]-[91] (n 7) 28 Lord Steyn at [28], Lord Hope at [59], Lord Hutton at [94]-[95], Lord Millett at [111] (n 8) 29 Lord Bingham at [7] (n 8)

it is submitted that while legal certainty is good, doing justice is even better. Arguably, the only thing worse than having made a mistake for the past four years is to persist in making the same mistake for the foreseeable future.

In relation to the prohibition against wrongful life torts, some of the abovementioned considerations are also applicable. In particular, two key reasons as suggested in the case law will now be examined.

First, it was held that as a matter of public policy, wrongful life claims were morally abhorrent as they undermined the sanctity of life, which has been acknowledged to be a weighty principle.30 To borrow the opinions of the minority judges in Cattanach, financially estimating the emotional benefits a child will bring would be akin to treating them as a commodity.31 In particular, given that wrongful life claims have thus far been brought by disabled children, such an approach would appear to dehumanise them into mere property, wherein defects can be compensated by monetary means. This would result in the law becoming incoherent as it is premised upon “desirable paradigm[s] of family relationships”32 and “key values in family life”.33 However, sanctity of life has never been an absolute legal principle, notwithstanding its moral weight. For instance, it is legal for women in Singapore to abort a foetus under the Termination of Pregnancy Act (Chapter 324), an act which is typically viewed as violating the sanctity of life. On the contrary, the sanctity of life would arguably be better upheld in allowing wrongful life claims, as this would enable disabled individuals to recover sufficient costs to maintain a reasonable standard of living and care.

Second, it has been asserted that as with wrongful birth claims, there is an issue of incommensurability; it would be impossible to attempt to assess damages by comparing the monetary value of an abnormal existence to that of non-existence at all. Thus, the child suffers no damage through the negligence. Such was the reasoning in McKay, which held that no damage could be established since the child plaintiff could not prove that he was worse off on account of the negligence. However, as will be explained below, this is barking up the wrong tree, and the correct damage would be the child’s disability, as opposed to non-existence.

LOOKING FORWARD: THE LEGAL POSITION Having argued that the present legal position is unsatisfactory and lacks a clear rationale, how should this unhappy state of affairs be tackled? It is submitted that the superior approach would be to permit both wrongful life and wrongful birth claims. This would be consonant with normal tort law principles, and as argued above, the various policy arguments in favour of denying such claims are unpersuasive.

First, it is necessary to consider what the “normal” principles applicable to the tort of negligence are. In brief, one would typically examine the actions, events and connections between the defendant and the plaintiff to determine whether there is a duty of care which has been breached, causing actionable loss which is not too remote, with the caveat that no defences are applicable in the present action. However, broader policy considerations 30 31 32 33

Stephenson LJ at 1180, Ackner LJ at 1188 (n 1) Hayne J at [261] (n 10) Hayne J at [258] (n 10) Heydon J at [322] (n 10)

such as distributive justice may also be taken into account in deciding whether an attribution of liability is socially or morally desirable by way of imposing a tortious duty of care.

Second, one must consider whether claims for wrongful life and wrongful birth would be deemed as physical damage or pure economic loss, given that different rules are applicable. As abovementioned, the House of Lords held that wrongful birth damages would be a form of pure economic loss in McFarlane.

However, Stretton argues that an unwanted pregnancy constitutes physical damage since it involves a substantial invasion of one’s bodily autonomy by introducing profound bodily changes to which the woman did not consent,34 a position which also found favour with Kirby J in Cattanach.35 Thus, insofar as the mother is concerned, pregnancy and upbringing costs would constitute a claim for consequential loss.

However, where a father has made the claim, it would constitute pure economic loss since the loss is caused by physical damage to a third party, the mother. Nonetheless, as regards joint claims, there is no reason to prefer the father’s perspective since the more restrictive requirements imposed on the recovery of pure economic loss as opposed to physical damage stemmed from the concern of indeterminate liability. Hence, insofar as at least one plaintiff suffers physical damage, that concern is assuaged and thus, a joint claim should be seen as one for consequential loss.36 A duty of care clearly exists between patients and their doctors. Since it is reasonably foreseeable that negligent medical advice or procedures could cause an unwanted pregnancy, pregnancy and upbringing costs are reasonably foreseeable kinds of damage that may result from such a breach of duty.37 Further, failure to abort or adopt out the child cannot be deemed to be a novus actus interveniens which breaks the chain of causation since keeping the child is a foreseeable and non-negligent consequence of the breach.38 Hence, a claim for wrongful birth should be viewed as one concerning physical damage, and should be permissible applying normal tortious principles.

Third, in the alternative, even if a claim for wrongful birth is deemed to be pure economic loss, it is submitted that the requirements for recovery are still met. While the general rule is that there can be no recovery for pure economic loss, the seminal case of Hedley Byrne v. Heller39 establishes that a duty of care with respect to pure economic loss may arise where the defendant has assumed responsibility towards the plaintiff. Given that medical practitioners possess special skills and knowledge and have used said expertise in treating patients, knowing that its accuracy is being relied upon by them, and that such reliance is reasonable, the elements of a claim are arguably made out. While Lord Slynn opined that the doctor did not make such an assumption of responsibility,40 such a position appears to be inconsistent with the fact that in undertaking a duty of care to prevent pregnancy, doctors have assumed responsibility for the physical effect of the pregnancy and childbirth as well as consequential suffering of the mother following childbirth, but not child rearing expenses.

Undoubtedly, a line has to be drawn somewhere; liability cannot be indeterminate. However, it appears to be disingenuous and incoherent to draw a distinction between child rearing expenses 34 D Stretton, ‘The Birth Torts: Damages for Wrongful Birth and Wrongful Life’ (2005) 10 Deakin Law Review 319, 330 35 At [148] (n 10) 36 At [149]-[150] (n 10) 37 Kirby J at [179] (n 10) 38 Kirby J at [220]-[222] (n 10) 39 [1964] A.C. 465 40 At 76 (n 5)

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and costs relating to the pregnancy as a matter of principle. Both heads of damage are clearly foreseeable; the obvious corollary of an unintended pregnancy is naturally that a child who must be fed, clothed and raised will be born. Short of a convincing policy argument as to why the assumption of responsibility should be so limited, it is submitted that Lord Slynn’s view is incorrect and lacking in justification. Thus, prima facie, a claim in pure economic loss should also succeed.

In relation to wrongful life claims, the doctor’s negligence occurs prior to the plaintiff ’s birth. While unborn children are not deemed to be legal persons at common law, doctors may still owe a duty to prevent physical damage to the person who may be born subsequently.41 Thus, the vital question is whether the doctor’s negligence caused physical damage to the plaintiff, who is disabled. McKay stated that this question is to be answered in the negative as the “damage” must be shown in the sense of the plaintiff ’s own existence is worse than his non-existence, which is what it would otherwise have been. However, this approach may be criticized as being misguided since it looks to the plaintiff ’s life as a whole, rather than physical damage per se, which is arguably the individual’s disability since there is a malformation of brain or body.42 Where the remaining elements of a negligence action such as causation are met, there is no reason in principle to deny such a claim. However, in JU, Lai J stated that even if there was a breach of duty, the cause of the plaintiff ’s Down Syndrome was genetic rather than arising due to the doctor’s negligence.43 Nevertheless, this appears to ignore the fact that factual causation is still made out since the fundamental argument is that but for competent advice and treatment, the plaintiff would not have been born at all, and thus, would not have had to suffer her disability. Furthermore, in cases of severe disability, it could be contended that non-existence might actually be superior to a painful and stunted life.44 Thus, the doctor ought to be liable in principle for pain, suffering and disability costs, subject to the other principles which govern the tort of negligence. For instance, a wrongful life claim would not succeed where it was not reasonably foreseeable that the doctor’s negligence would result in the birth of a disabled child.

LESSONS, CONCERNS AND CONSIDERATIONS: THE CASE STUDY OF ISRAEL Having argued in favour of allowing all claims for both wrongful life and wrongful birth, it is expedient to consider the case study of Israel. In 1986, the Israeli Supreme Court allowed both wrongful life and wrongful birth claims in Zeitsov v. Katz,45 thus becoming one of the few countries which allowed wrongful life claims. However, in May 2012, it decided that wrongful life claims, which were historically preferred since it carried a larger award designed to compensate the child for a lifetime of suffering, would no longer be allowed. Nonetheless, wrongful birth claims remain permissible; damages for the extra expenses of raising a disabled child and meeting his needs for the rest of his life can still be claimed insofar as parents are able to establish causation between the unidentified defect and the child’s disability.46 41 42 43 44 45 46

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Distillers Co. (Biochemicals) Ltd. v. Thompson [1971] A.C. 458 At 354-355 (n 34) At [98] (n 2) At 364 (n 34) (1986), 40(2) P.D. 85 Hammer et al. v. Prof. Amit et al., C.A. 1326/07 [2012]

From 1986 to 2012, Israel was ostensibly a world leader in both wrongful life and wrongful birth claims, with a significant increase in the last decade especially.47 This led to concerns that medical practitioners were becoming more defensive, resulting in more testing and over-cautiousness in making risk assessments in a bid to leave no stone unturned. In turn, this would result in more false positives, and thereby lead couples to unwittingly abort healthy foetuses,48 which some deem to be morally abhorrent.

However, in relation to Singapore, such concerns may be overstated given that Israel experiences relatively high rates of consanguineous marriage within its communities (i.e. between second cousins or closer relatives).49 Hence, a higher rate of genetic defects is more likely due to inbreeding. Further, despite concerns of promoting litigiousness, it must be noted that undertaking a lawsuit is unlikely to be done on a frivolous whim given the possibility of lengthy trials which are emotionally and financially draining. This is especially in light of the difficulties of proving a medical negligence claim, most notably, the element of breach under the Bolam v. Friern Hospital Management Committee50 test.

Having argued that all wrongful life and wrongful birth claims should be upheld, it is necessary to address a particular concern - the public perception in respect of disabled children. Given the advancements in protecting disabled individuals from disability and their increasing integration and acceptance into mainstream society, allowing wrongful life and wrongful birth claims would appear to be a step in the wrong direction; it indirectly suggests that such individuals are less desirable, and thereby adversely affects the psychological well-being of individuals with disabilities. In particular, it poses an especially cruel predicament to the children involved if they subsequently find out that their parents would have aborted or not conceived them altogether. Furthermore, there may be broader implications on the public’s perception of disability, reinforcing negative stereotypes that disabilities are undesirable.51 Also, in providing for individual relief, it is feared that the struggle for disability rights and adequate social services may inadvertently be left by the wayside.52 While it is undeniable that society should strive towards eliminating discrimination against the disabled and helping them to live their lives to the fullest, it seems incongruous to simply dismiss the very real concerns and struggles that parents of disabled individuals face. While the notion that disability is a matter of social construct and should be corrected by tackling societal norms is an attractive one, the fact of the matter is that disabled individuals and their caregivers continue to face multiple challenges throughout the former’s life. For instance, a child who has osteogensis imperfecta,53 otherwise popularly known as “brittle bone disease”, would be prone to suffering excruciating fractures for the rest of his life since there is no known cure. This makes participation in daily life a challenge, since even simple acts 47 S Mor, ‘The Dialectics of Wrongful Life and Wrongful Birth in Israel: A Disability Critique’ (2014), 63 Studies in Law, Politics, and Society 113, 119 48 L Fatimathas, ‘’Wrongful life’ – the children who sue for being born’ (BioNews, 31 October 2011), < http://www.bionews.org.uk/page_110794.asp> accessed 10 July 2015 49 Id. 50 (1957) 1 WLR 583 51 At 176-181 (n 3) 52 At 140 (n 47) 53 ‘What Is Osteogenesis Imperfecta?’ (US National Institute of Health, November 2014) < http://www.niams.nih.gov/health_info/bone/osteogenesis_imperfecta/osteogenesis_imperfecta_ff.asps> accessed 10 July 2015

such as rolling over in bed can result in fractures, and cannot be wholly remedied by a change in societal attitudes. Similarly, a child with severe lissencephaly54 may be permanently stuck at a three to five month developmental level, and is likely to suffer from seizures, severe psychomotor retardation, and respiratory illnesses. Such individuals are likely to require round the clock care for the rest of their lives as well as medical treatment, an expense which many families cannot afford. Allowing for damages which reflects the higher costs of raising a disabled child would arguably go a long way in helping the families and the children in enjoying a higher quality of life. While one could argue that social welfare would be a better avenue in ensuring that every child enjoys a reasonable standard of living, the unfortunate truth appears to be that it would be difficult to ensure such assistance is consistently provided for, given the understandable constraints on resource-allocation as well as potential complications with implementation. Furthermore, providing for individual relief is not in itself incompatible with agitating for greater social change, and leaving the financial state of such families to the vagaries of their personal finances and the social welfare system is a more undesirable state of affairs.

CONCLUSION As the aphorism goes, hard cases make bad law. In deciding whether claims for wrongful life and wrongful birth should be allowed, the courts are trapped between a rock and a hard place. On the one hand, to award a parent damages for the costs of raising the child in a wrongful birth claim has been deemed to be “repugnant”, as it “devalue[d] … life”, and treated “vulnerable children” as “mere commodities”, to borrow the words of then-Acting Prime Minister of Australia John Anderson regarding Cattanch.61 However, it is submitted that first, as a matter of legal principle, wrongful birth and wrongful life claims ought to be allowed under normal tortious principles. The second question is whether there are any public policy considerations as to negative such liability. It is submitted that on balance, the arguments advanced by the courts are fundamentally unpersuasive.

Thus, the present legal position is incorrect, and ought to be reversed.

Finally, the question as to the quantum of damages should be addressed. Under normal tort law principles, damages are intended to be compensatory – to put the victim in the position he would have been in had the wrong not occurred.55 A concern has been raised in that the amount of damages awarded may vary in each case; well-off families would arguably spend more on their children and thus, in theory, a higher quantum of damages should be awarded.56 Such a conclusion appears to be politically incorrect at best, and morally abhorrent at worst as it suggests that in pure monetary terms, some lives are less equal than others. However, one could institute a standard tariff which accounts for only what is reasonably necessary to ensure the child’s reasonable welfare. Thus, basic child-rearing expenses, such as food and clothing, would be covered, but not items such as extravagant holidays to exotic locations.

Gleeson CJ in Cattanach also raises several concerns in terms of the extent of liability; it is unclear when precisely liability would end as in this day and age, children are often dependent on their parents past the age of 18. Thus, expenses like weddings and tertiary education would be included as well.57 Damages for the parents’ loss of earnings owing to raising the child may also be substantial and would prima facie be recoverable as a foreseeable head of damage58, and upbringing costs would have to be discounted since the child may go on to provide financial assistance to their parents later in life59. However, the response to this is that liability would end when the child, on the facts, “might [reasonably] be expected to be economically self-reliant.” Thus, matters such as tertiary education could be included if reasonably incurred prior to self-reliance, which would presumably be deemed to be around the ages of 18 to 21 for an average child.

Conversely, claims concerning loss of earnings could be treated like any other similar claim, and evidence of likely financial assistance could result in a discount.60 54 ‘NINDS Lissencephaly Information Page’ (US National Institute of Health, 30 June 2015 < http://www.ninds.nih.gov/disorders/lissencephaly/ lissencephaly.htm> accessed 10 July 2015 55 Robinson v. Harman (1849) 1 Exch 850 56 Heydon J at [306] (n 10), Lord Hope at [91] (n 5) 57 At [32] (n 10) 58 Id. 59 Gleeson CJ at [34], Kirby J at [175] (n 10) 60 At 333 (n 34)

61 Hon John Anderson MP, Deputy Prime Minister and Minister for Transport and Regional Services, ‘Cattanach Decision: Statement by the Acting Prime Minister’, 17 July 2003

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By Sherah Tan Earlier this year, the UK Parliament debated whether it should legalise PAS. This writer considers how Singapore Parliament might implement such legislation - if it ever will implement such legislation.

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Image: Carmine Marinelli / Vancouver 24hrs/QMI

In the next 15 years, Singapore’s projected working adult to elderly ratio is expected to fall from 4.8 to 2.1.1 Understandably, with an older population we expect an increase in demand for healthcare services – and consequently the ethical and legal issues that come with that territory.

The current stance regarding assisted dying in Singapore is that competent2 patients have the right to refuse treatment;3 passive euthanasia through the withdrawal of treatment is thus legally permitted.4 There is also an Advance Medical Directive Act (AMDA) that permits competent persons to refuse life-sustaining treatment should they suffer from terminal illness and lose 1 National Population and Talent Division, Prime Minister’s Office.

‘Issue Paper 2012-Our Demographic Challenges and What It Means To Us’ (2012) 2 “Competent” as defined by Mental Capacity Act (Cap 177A) ss 3, 4 3 [2002] EWHC 429 4 [1993] AC 789

Is Singapore ready for Physician Assisted Suicide?

their competence.

Since Singapore’s medical law is largely adopted from the UK, it is prudent to consider the recent attempt by Lord Falconer to enshrine, following the recent R (Nicklinson) v. Ministry of Justice5 case, a “right to die” in UK law. The UK Parliament has often attempted to legalise assisted dying in the wake of controversial cases where courts have deferred to Parliament to have the final say in the matter, the last attempt being Lord Joffe’s Bill6 post-Pretty7 in 2004. Currently UK law does not permit assisted suicide, although suicide itself is legal.8 In contrast, Singapore outlaws both suicide and assisted suicide.9 This essay seeks to discuss the repercussions of adopting a similar bill that legalises 5 6 7 8 9

[2014] UKSC 35 Assisted Dying for the Terminally Ill Bill 2004 [2001] UKHL 61 S.1 Suicide Act 1961 (UK) Penal Code (Cap 224, 2008 Rev Ed) ss. 107, 309

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physician-assisted suicide (“PAS”) in Singapore. 10 It should be made clear from the outset that PAS refers only to the legalisation of physician-abetted suicide for the terminally ill. The patient in PAS takes the final act of ingesting the lethal drugs, as opposed to voluntary active euthanasia (“VAE”), where the final act is committed by a third party.

The debate surrounding Lord Falconer’s Bill revolves around three key principles: firstly, the sanctity of life; secondly, that individual autonomy ought to preside over life-or-death decisions11; and thirdly, concessions for the compassionate. Singapore law as it stands strongly advocates palliative care for the terminally ill – indeed, the government has expanded its palliative care system in the past 5 years12 – but as effective as palliative care may be, it does not alleviate the mental and emotional stress that patients may go through during the course of their terminal illness. Such considerations have given rise to public debates on whether Singapore should legalise euthanasia and PAS in the past.13 CJ Sundaresh Menon stated that legalizing PAS is a matter for Parliament to consider.14 Because no framework for the decriminalisation of doctors has been put up for consideration by our government, this essay will examine how legalising PAS in Singapore might play out, with reference to existing laws from various jurisdictions, which already permit PAS. CLARIFYING LEGAL INCONSISTENCIES At present, Lord Falconer’s Bill simply compels the UK Parliament to reconsider its approach to the legal incongruences in assisted dying and voluntary active euthanasia. There is much clarity to be sought on how the law should resolve its stance with the other moral aspects of assisted dying – something which the UK courts have assiduously avoided.15 The Bill’s applicability to Singapore turns on whether the boundaries the Bill seeks to establish are morally permissible: It openly acknowledges a legal concession to the “general prohibition on assisting and encouraging suicide”.16 Enabling competent adults who are terminally ill to be provided at their request with specified assistance to end their own life inherently suggests that a criminal act may be morally acceptable as long as it is embarked on with the right intentions in a state-sanctioned circumstance. Is this the ethical ideal we want the law to represent? It appears that Singapore accepts the doctrine of double effect (“DDE”): an action, if embarked on with good intentions (not to cause death) and in good faith, is not a crime even if the negative consequence was reasonably foreseeable.17 Overall, the law takes the stand that it should not justify the promotion of pain alleviation over life preservation as this is 10 As of 7 May 2015, the Bill is no longer being debated. This article will, however, continue to discuss its substantive content and its relevance to Singapore.

11 [2005] UKHL 45, [68] per Baroness Hale 12 Lien Centre for Palliative Care, Duke-NUS Graduate Medical School. ‘Report on the National Strategy for Palliative Care’ (2011) 13 “Can you please kill me?” Special report on euthanasia, Sunday Times (26 October 2008); “Allowing euthanasia is no panacea” The Straits Times (15 November 2008) 14 S. Menon, ‘Euthanasia: A Matter of Life or Death?’ (2013) 15 S. A. M. McLean, Old Law, New Medicine: Medical Ethics and Human Rights (1999) McLean, (see Biggs excerpt) 16 Nicklinson [2014] UKSC 35, [300-301] per Lady Hale 17 Penal Code (Cap 224, 2008 Rev Ed), s 88

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inconsistent with the values of medical practice.18 In legalizing PAS in Singapore, no clear legal principle consistent with current practice may be found. On the one hand, legalisation of PAS has the potential to dismantle the act-omission distinction that has come to be relied on to defend the acceptance of passive non-voluntary euthanasia and proscription of active euthanasia19 as PAS can hardly be construed as an omission. The 1993 UK case of Airedale NHS Trust v. Bland20 illustrated how carefully this line ought to be drawn: withdrawal of life-sustaining treatment should be considered an omission, as there was no prospect of improving the patient’s condition even with sustained treatment. However, academics have generally agreed that this distinction is artificial where doctor-patient relations are concerned – any act or omission pursued by a doctor should be in the best interests of his patient due to the duty of care owed.21 Thus, if a doctor, abets the suicide of a terminally ill patient under enacted PAS legislation, he logically acts in accordance with his primary duty of care to uphold the best interests of his patient.

However, it is interesting to note that while these academics see this distinction from a patient-outcome approach (that the patient eventually dies whether or not death is accelerated by physician aid), Singaporeans tend to see PAS from the perspective of the medical practitioner (“do no harm”22), rather than the patient, thus retaining the distinction between “killing” and “letting die”.23 Consequently, the act-omission distinction cannot be dispensed with, making it difficult to justify PAS as the physician will be seen as playing an active role in the patient’s death.

On the other hand, Lord Falconer’s Bill in the Singaporean context would still fail to further create a paradigm in which PAS can be wholly consistent with the criminal law. Legalising PAS suggests that physician beneficence sufficiently negates the mens rea of murder24 or, as seen in Cox,25 begets no severe punishment. As such, without further safeguards and a clear sense of its ethical basis, any PAS legislation may mark the beginning of the slippery slope.26 Legalizing PAS would suggest that Parliament is willing to further patient autonomy by granting terminally ill patients the right to request PAS. Even so, if patient autonomy is the sole ethical basis for the Bill, then it is redundant as AMDA also ostensibly provides patients a way to “die with dignity”. Thus legalising PAS will serve only to further the notion of “death with dignity” by enabling terminally ill competent patients to request PAS. In other words, a Bill to legalise PAS in Singapore will be primarily directed at protecting physicians from prosecution. Such legislation insinuates that physician compliance with patient wishes is enough to exonerate any medical professional who ends their patient’s suffering out of compassion.27 While in the UK most physicians believe that a patient with a “terminal illness and un18 British Medical Association, BMA Policy on Assisted Dying (2015); Hippocratic Oath – Classical Version 2004 19 Coulson, 1996; Kamm, 1998.

20 Supra n4.

21 T.L. Beauchamp and J. Childress, The Principles of Biomedical Ethics (2009); see also note 17, [885] per Lord Goff in Bland at 885.

22 Hippocratic Oath – Classical Version 2004 23 Supra n14.

24 For further discussion, see R Huxtable, ‘Get out of jail free? The doctrine of double effect in English law’ (2004) 25 R v Cox (1992) Winchester Crown Court 26 J. Keown, Euthanasia, Ethics and Public Policy (2002) 27 H. Biggs, Euthanasia, death with dignity, and the law (2001)

controllable physical suffering should be allowed to engage in physician-assisted suicide”,28 our conservative social mores and “family culture” mean that a similar result in Singapore is unlikely to be obtained. A large proportion of Singaporeans hold traditional beliefs that talking about death is taboo,29 and a study done among hospital staff in Singapore have described Singaporeans as “suspicious” – patients are prone to thinking that doctors are “giving up on them” if they spoke about “end-of-life” or ceasing continued treatment. 30 This attitude suggests that society is not ready to adopt PAS as Singaporeans are largely “distrustful of the motives of families, healthcare professionals and the government”.31 THE IMPORTANCE OF CRAFTING PAS LEGISLATION CAREFULLY On top of what has already been discussed, if we were to implement such a Bill, we would need to clarify the incompatibility of the current medical practice with criminal law, without explicitly establishing a dangerous precedent by enshrining in statute the principle that aiding the death of another is permissible.

Parliament should not only “be concerned with the fitness for purpose of any legislation” but also “ensure that the law would operate in the way that Parliament intended.”32 There are two main aspects of the assisted dying legislation to consider if it were enacted in Singapore: Firstly, the eligibility criteria to be implemented and secondly, the implications of the Bill on the medical community.

To address the first point: hypothetically, if Singapore were to adopt any legislation on assisted dying, its eligibility criteria would most likely mirror Oregon’s Death With Dignity Act (ODWDA). Such an approach has also been proposed in the UK.33 This is bearing in mind that Oregon is the only jurisdiction that currently regulates the availability of PAS via clear cut, stipulated benchmarks. In contrast, Belgium’s Euthanasia Act 2002 states that the attending physician need only be satisfied that the competent patient is in a “medically futile condition”;34 similarly, the Netherlands states that attending physician finds the patient’s suffering to be “lasting and unbearable”,35 without elaborating on what either “lasting” and “unbearable” should constitute.

The Oregon eligibility criteria requires that the competent, terminally ill adult patient voluntarily requesting PAS must have, as defined by reasonable medical opinion, a prognosis of six months or less.36 However, general practitioners agree that a prognosis at six months is unreliable,37 whilst oncologists have noted that there is generally an overestimation of life expectancy by 1.1 months in terminal cancers.38 Given this disagreement between members of the medical profession, we look to the ODWDA to verify the adequacy of the six-month benchmark. The ODWDA 28 I Patterson, ‘The Ethics of Assisted Suicide’ Nursing Times (2003) 29 Lien Foundation, ‘Survey on Death Attitudes in Singapore’ (2009) 30 Tan, J O A., Chin, J J L., Kaan, T S H., and Chan, T E. ‘What Doctors Say About Care of the Dying’ (2011) 31 Ibid.

32 HL Deb 18 July 2014 c919, per Lord Faulks 33 HL Deb 18 Jul 2014 c775-6, per Lord Falconer 34 The Belgian Act on Euthanasia of 28th May 2002, s 3.1 35 Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002, Article 2(b) (Netherlands) 36 Oregon Death With Dignity Act (ORS 127.805), ss. 1.01(12), 2.01 37 House of Lords Report (Session 2004-05) 86-I, paragraph 118 38 Krishnan et al, ‘Predicting Life Expectancy in Patient with Advanced Incurable Cancer: A Review.’ (2013)

data showed that there was a tendency for terminally ill patients to attempt to live out their lives before requesting PAS, and the “median number of days from first request to death is 39 days”.39 Given that the ODWDA has a cooling off period for 15 days,40 the six-month benchmark based on the ODWDA thus seems fairly reasonable.

We must also consider what ‘capacity’ means in the context of PAS law. Under Singapore law, a person is deemed to have capacity unless it is established otherwise.41 Terminally ill patients requesting PAS are likely to be depressed,42 which may often go unnoticed by the attending physician. In such a scenario, a patient may be deemed to have “capacity” even if clinically depressed. Without further restrictions, the eligibility criteria could be open to abuse, especially if the patient is clinically depressed.

A potential criterion that can to be included to qualify such legislation is to mandate a psychiatric assessment to ascertain if the patient is clinically depressed, just as the ODWDA does.43 The ODWDA states that two physicians who have assessed the patient independently of each other must countersign the application for PAS.44 Theoretically, the reasoning is sound: diagnoses tend to be fairly accurate if two independent physicians concur without having discussed their medical opinion with each other.45 Nonetheless, there is still room for inaccurate assessment as many of those seeking assisted suicide may be assessed by physicians they have only recently met. Unfamiliarity could lead to inaccurate assessments of competence and voluntariness – ODWDA data suggests an acquaintance of 12 weeks on average.46 Thus even the safeguards contained within OWDWA are unable to completely guarantee that the legislation can give effect to the wishes of vulnerable patients.

Such a piece of legislation will also affect the medical profession and its practice. In Singapore, the medical profession is largely self-regulating and doctors are held to account by the Singapore Medical Council (“SMC”). In theory, if physicians were given legal immunity against the medical community’s disinclination to support the Bill, 47 it is likely that whatever practice guidelines set by the Singapore Medical Council will likely be harsher on the medical profession than the legal guidelines. In reality however, Parliament does not operate in a vacuum. While the SMC remains a statutory body under the Ministry of Health, in order to ensure that such legislation operates as legally intended, any PAS legislation is likely to be heavily influenced by the medical community. If these guidelines are too harsh, it may defeat the purpose of legalising PAS as doctors will be reluctant to abet suicide for fear of disciplinary action; conversely if they are too loose, such legislation will be open to abuse. Additionally, such legislation might constitute legal interference with the self-regulatory nature of medical practice.

In view of the above, in order for Parliament to put forth such a Bill, it needs to be clear on the ethics that it promotes, consult 39 JL Werth Jr., and H Windburg. ‘A Critical Analysis of Criticisms of the Oregon Death with Dignity Act.’ (2005) See Oregon Critical 40 N. 34, S.3.06 ODWDA 41 Medical Capacity Act (Cap 177A), ss. 3(2), 3(3)(b) 42 L Ganzini, ER L, Goy, SK ER, Dobscha SK. Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey. BMJ 2008;337:al682. (8 October.)

43 S.3.03 ODWDA 44 N. 34, S.3.02 ODWDA 45 Payne et al. ‘, 2014. Mayo Foundation. Patient-initiated second opinions: systematic review of characteristics and impact on diagnosis, treatment, and satisfaction.’ (2014) 46 Oregon Public Health Division, (2012 (see ADB Report) 47 British Medical Association at n. 15.

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various medical experts, and have a ready justification for where it draws the arbitrary line.

CONCLUSION: IS SINGAPORE READY FOR PAS? There are multiple problems with legalising PAS in practice. The first is that our society is not entirely clear of what PAS entails – even among “healthcare professionals and medical laypersons”, who occasionally confuse it with VAE.48 Therefore, proposing legislation for PAS without ensuring that the public is educated may be jumping the gun, as it is likely to attract misconceived and ill-informed dissent. Thus for Parliament to pass any PAS legislation in the future, groundwork in the form of awareness campaigns should be carried out.

Secondly, and perhaps more importantly, the differences between these jurisdictions that have legalized PAS (Belgium, the Netherlands and Oregon) and Singapore cannot be understated.

What works for them may not work in Singapore. For example, as a matter of infrastructure, their healthcare systems are not as geared towards catering for an aging population as Singapore’s is.49 Culturally, Singapore is a very conservative society50 in comparison to Oregon, which was found to be the fifth-most liberal state in the United States in 2014.51 While in theory it is possible for a conservative society to adopt PAS legislation, it is presumptuous to expect them to respond in a manner that mirrors a more liberal society. Even within Belgium, a study noted that the distinct cultures of Wallonia and Flanders responded differently to the PAS legislation in Belgium. In particular, it found that physicians from Flanders, an area with stronger Dutch influence, were more likely to grant PAS than physicians from the French-influenced Wallonia.52 Evidently, the cultural influence of the Dutch and French extend not only to language and cuisine, but also to their social mores – the Netherlands is one of the few jurisdictions that legalizes PAS while France has yet to adopt any such legislation. Given the cultural influence on how legislation is enacted, it would be extremely naïve to expect Singaporeans to take to the Oregon approach, should we decide to legalise PAS at all.

Lastly, Singapore appears to take a more paternalistic slant to medical treatment than other jurisdictions. In Re LP, Choo Han Teck J stated that doctors were “entitled, if not obliged, to respect” 53 the patient’s decision. The words “entitled” and “obliged” suggest that doctors are not obligated to give due effect to their patient’s wishes and that there are circumstances in which doctors may override these wishes. This paternalistic approach contrasts with the autonomy-led approach taken by countries such as the UK.54 There is no room for PAS legislation in a legal system that takes a paternalistic approach to deciding what course of treatment should be given. The point of legalising PAS is to give effect to personal autonomy in life-or-death situations. If the law continues to take a paternalistic slant to protect the patient’s “best interests”, it is unlikely that PAS will be legalized in the years to come.

48 JJ Chin, ‘The Right to Assisted and Accelerated Dying in Singapore?’ (2013) 49 J. Chin and J. Tan, ‘End-of-Life Decisions: What are Singapore Doctors’ Attitudes?’ (2010) 50 IPS, ‘Survey on Race, Religion and Language’. (2014) 51 Gallup Daily Tracking, January –December 2014 52 J. Cohen et al, ‘Cultural differences affecting euthanasia practice in Belgium: One law but different attitudes and practices in Flanders and Wallonia’. (2012) 53 [2006] SGHC 13, at [4] 54 Re C [1996] 1 All ER 819

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HEEDING THE SILENT CRY: STEPPING UP THE FIGHT AGAINST HUMAN TRAFFICKING IN SINGAPORE

By Indhuja Ramakrishnan INTRODUCTION “They told me I could easily earn $1,000 or more each month”; “That’s when I realised that however hard I worked, whatever pain I suffered, they would always keep taking away my earnings from me. It was no use.”1 – These are just a few of the many silent cries of the victims of human trafficking in Singapore.

Nearly two centuries after the American Civil War, the practice of slavery is universally condemned. One cannot deny that slavery was a truly heinous practice which involved the exploitation of one human for the benefit of another, as if one was subordinate and unequal. Unfortunately, slavery did not end with abolition in the 19th century. According to the International Labour Organisation (ILO) around 21 million men, women and children around the world are in a form of slavery.

Human trafficking, which includes sex trafficking, labour trafficking and the peddling of human organs,2 is a growing 1 AsiaOne, ‘Pub waitress forced to entertain customers’ (24 March 2014), <http://news.asiaone.com/news/singapore/pub-waitress-forced-entertain-customers?nopaging=1> accessed 11 July 2015 2 Ministry of Manpower, ‘National Plan of Action Against Trafficking

concern in Singapore, with estimated annual profits made from trafficking in Asia increasing from US$9.7 billion3 in 2005 to US$10 billion in 2013.4 General Assembly President Ali Treki mentioned, “Abduction, coercion, trafficking against national and international borders, forcing women and children into sexual exploitation and servitude – this must not be accepted in today’s world”. What is most worrying is that there remains a prevalent but incorrect belief that human trafficking is foreign to Singapore. Unfortunately, contrary to this, Singapore is a prime destination for traffickers on an international plane to send their victims due to its status as a regional economic and transport hub.5 It is thus vital that Singapore law ensures victims of human in Persons: 2012 -2015’ (2012) <http://www.mom.gov.sg/Documents/tip/tipbooklet_080812.pdf> accessed 17 January 2015 3 Patrick Besler, ‘Forced Labour and Human Trafficking: Estimating the Profits’ (Geneva, International Labour Office, 2005) 4 United States Department of State, ‘Trafficking in Persons Report – Singapore’ (2013) 5 Channel NewsAsia, ‘Introduced in Parliament: New Bill to add more bite to anti-human trafficking laws’ (Oct 2014) <http://www.channelnewsasia.com/news/specialreports/parliament/news/introduced-in-parliament/1401832.html> accessed 17 January 2015 130

trafficking have adequate access to justice. As John Rawls eloquently put it, “… social justice is about assuring the protection of equal access to liberties, rights, and opportunities.”6 The legal system in Singapore places a huge emphasis on legislating, particularly through enacting the Prevention of Human Trafficking Act, in order to protect victims of trafficking.

This article will examine the effectiveness of the ‘4Ps strategy’ introduced by the National Plan of Action initiative as well as legal intervention in tackling this abhorrent crime and how Singapore fares on a global level. It is submitted that Singapore has made great strides in its efforts to tackle human trafficking through adopting multi-stakeholder initiatives and implementing a more rigid set of laws.

IS SINGAPORE DOING ENOUGH TO TACKLE TRAFFICKING IN PERSONS? Recently, the Singapore Inter-agency Taskforce on Trafficking in Persons (“TIP”) noted that the US Department of State’s TIP Report 2014 has placed Singapore under the Tier 2 band.

Despite having improved its overall coordination and referral mechanisms with regards human trafficking, the lack of legislation defining trafficking undermined Singapore’s ability to identify and prosecute cases.7 The Tier 2 band is described in the report as denoting “countries whose governments do not fully comply with the Trafficking Victims Protection Act’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards”. In contrast, Taiwan was able to move up from Tier 2 to the Tier 1 band as it adopted a more victim-centred approach, enacted legislation targeting human trafficking specifically and was more involved in crossborder collaborations.8 As such, the Singapore government is taking bigger steps in its fight against traffickers. Singapore aims to adopt effective strategies with the cooperation of both the legal fraternity and other stakeholders such as NGOs to tackle this problem locally and internationally. This commitment to the prevention of human trafficking may be evidenced by the fact that the Singapore government has allocated a budget specifically for anti-trafficking activities in the equivalent of approximately $4.4 million for the period of 2012 to 2015.9 Most significantly, in November of 2014, Singapore passed her first law against human trafficking: the Prevention of Human Trafficking Act. NATIONAL PLAN OF ACTION (NPA) One of the initiatives Singapore has embarked on with regard to TIP is the NPA,10 which has been in effect since 2012. The NPA is a reflection of the combined efforts of the Singapore InterAgency Taskforce on TIP and various stakeholders, and sets out Singapore’s strategy to combat human trafficking. The NPA is based on the principles of prevention, prosecution, protection and partnership – thus aptly named the “4 Ps”. These principles will form the basis for this discussion.

PREVENTION OF TIP Prevention is undeniably crucial in tackling human trafficking, 6 Ginka Tchervenkova, ‘John Rawls’ Notion of Justice as Fairness and the Global Society (2005) 7 EU-Asia Dialogue, ‘Human Trafficking – Challenges to Europe and Asia’ (Vienna, 2013) 8 ibid 9 United States Department of State, ‘Trafficking in Persons Report – Singapore’ (2013) 10 Ministry of Manpower, ‘National Plan of Action Against Trafficking in Persons: 2012 -2015’ (2012) <http://www.mom.gov.sg/Documents/tip/tipbooklet_080812.pdf> accessed 17 January 2015

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and can be achieved mainly through raising awareness and prompt action by stakeholders.11 In recent years, the government has given significant importance to a multi-stakeholder approach in a bid to achieve a responsive and adaptive model.

Raising awareness by educating members of public on the signs of trafficking and avenues to report suspicious situations to authorities helps increase the chances of detection and reporting crimes involving human trafficking. Projects such as “Educating For Justice” bring their work abroad to Indonesia where they raise awareness on labour exploitation and human rights in the classrooms and educate students on how consumers have tremendous power in helping to tackle such problems.

Additionally, government agencies play an active role in antihuman trafficking efforts. For example, the Immigration & Checkpoints Authority of Singapore (ICA) and Police Coast Guard (PCG) are conducting thorough checks along the borders of Singapore, keeping an eye on human smuggling.12 Moreover, the government has recognized the importance of a higher level of collaboration with the private sector (NGOs etc.) as this greatly assists with the identification of potential victims, enabling them to get the protection they deserve. One example would be EmancipAsia Ltd, a non-profit organization that has taken a step forward to combat human trafficking through raising awareness and engaging the public to combat this heinous crime.

With early detection, there can be a swift response to TIP crimes, thereby reducing exploitation of trafficking victims. However, this requires a great deal of cooperation and coordination between the various parties involved.

Raising awareness is an extremely crucial process in combating human trafficking, and the general public must be well aware about this serious crime such as the common misconceptions regarding trafficking and the key signs of trafficking. For example, The Humanitarian Organisation for Migration Economics (HOME) and the Singapore Committee for UN Women organised a series of talks to raise awareness amongst employment agencies on human trafficking and addressed the indicators of human trafficking in their business sector.13 Therefore, the indispensable role of stakeholder engagement in combating human trafficking cannot be underestimated.

PROSECUTION OF OFFENDERS This is where the indispensible role of legal intervention comes into play. Singapore recently passed its first law pertaining to TIP. Prior to this, Singapore did not have any specific laws governing human trafficking per se. However, there were many statutes and regulations that were relied upon to prosecute offenders, such as the Women’s Charter, Immigration Act of 200414, Employment of Foreign Workers Act of 200915, Children and Young Persons’ Act of Singapore16 and the Penal Code. However, the Penal Code has been criticized for its limited scope of application as there was a need for more specific laws targeting victim protection. The lack of an Act or Provision specifically defining TIP results in courts facing difficulties in identifying what should or should not fall under this category. In fact, in 2013, there were 53 reported cases of sex trafficking and 49 reported cases of labour trafficking in 11 Ministry of Manpower, ‘National Plan of Action Against Trafficking in Persons: 2012 -2015’ (2012) <http://www.mom.gov.sg/Documents/tip/tipbooklet_080812.pdf> accessed 17 January 2015 12 Immigration & Checkpoints Authority, ‘Annual Statistics Report’ (2011) 13 Ministry of Manpower, ‘Initiatives by TIP Public Awareness Grant Recipients in 2013’ (February 2014) 14 Act 12 of 1959, Chapter 133 15 Chapter 91A 16 Act 1 of 1993, Chapter 38

Singapore. However, only 7 cases have been prosecuted.17 While this can be attributed to many reasons such as public interest, lack of evidence and a victim’s apprehension to actively participate in the investigation and trial proceedings, this may also reflect the lack of a dedicated provision for TIP. Without the legal certainty that would accompany such a provision, law enforcement officials are unable to differentiate between situations where the person has been trafficked for the purpose of labour exploitation and where there has merely been exploitation in violation of labour laws.18 The fact that the criminal code did not define human trafficking in a manner consistent with the 2000 UN TIP Protocol limited the government’s ability to prosecute trafficking cases, particularly in circumstances of debt bondage or when the victim initially consented to migrate to Singapore for work and was subsequently subjected to trafficking in that sector.19 Observers report that Singaporean law enforcement authorities continued to display a passive and reactive posture toward human trafficking crimes, typically waiting for victims to come forward and file complaints.20 One may draw a parallel with the UK, which similarly has no single piece of legislation, but rather, over 25 pieces of legislation that provide for trafficking offences.21 Recognising the pitfalls of an uncodified human trafficking law, the Modern Slavery Bill has been proposed as a single piece of legislation to cover all human trafficking offences. Its aims include the improvement of identification of victims, the provision of support to such victims, and increasing penalties for offenders, with the maximum sentence being increased to life imprisonment.22 Such efforts have been also aimed at bringing the UK in line with her obligations under the European Convention of Human Rights, which prohibits slavery under Article 4.

Furthermore, law enforcement officers have faced challenges in “identifying and building evidence” in relation to sex and labour trafficking cases, failing to recognise patterns of trafficking among those who purportedly migrated to Singapore willingly or who did not experience physical confinement or abuse.23 However, the absence of such acts does not negate the fact of exploitation. Besides physical violence, emotional violence is an intrinsic part of this industry where traffickers prey on individuals in conditions of physical, economic, and psychological vulnerability. Victims are often deceived by traffickers with the promise of legitimate jobs, but end up being exploited as sex slaves, domestic labourers, and cheap labour.

These traffickers may employ tactics that coerce victims without actually using force, such as confiscating their passports. Aware of their own illegal status, victims are unable to approach local authorities for help, and are trapped in a cycle of exploitation and abuse. With such news making the headlines, Singapore Member of Parliament (MP) Mr Christopher De Souza has called for the intervention of the judicial system to aid with the imposition of harsher penalties and development of enforcement efforts to weed out traffickers. Considering the extent and seriousness of the crime, taking such a hard line will send the strongest possible 17 Channel NewsAsia, ‘Proposed Human Trafficking Bill is more focused way to address the problem: Experts” (October 2014) <http://www. channelnewsasia.com/news/singapore/proposed-human/1446208.html> accessed 17 January 2015 18 United States Department of State, ‘Trafficking in Persons Report – Singapore’ (2014) 19 United States Department of State, ‘Trafficking in Persons Report – Singapore’ (2014) 20 United States Department of State, ‘Trafficking in Persons Report – Singapore’ (2010) 21 Jones, J. (2012) ‘Human Trafficking in the UK: a focus on children’ 24 Child and Family Law Quarterly, 77 22 Home Office, ‘Draft Modern Slavery Bill’ (December 2013) 23 ibid

message to offenders.

SINGAPORE’S NEW LAW: PREVENTION OF HUMAN TRAFFICKING ACT (“ACT”) Singapore passed the Prevention of Human Trafficking Act on 3 November 2014 to combat the scourge of human trafficking.

The legal and political fraternity in Singapore commended De Souza for his considerable efforts in ensuring that the private member’s bill passed through Parliament after extensive public consultations.24 Besides providing that stiffer penalties (i.e. mandatory jail terms, fines)25 are imposed on offenders who are prosecuted, this Act also ensures the protection of victims’ safety.

De Souza emphasized the need for a “standalone law to plant a legal flag” that human trafficking is a grave crime in Singapore.

Instead of having many pieces of legislation to address this subject of growing concern, he stressed on the effectiveness of a “single, dedicated law”.26 Singapore was previously criticized for the lack of a law that defines human trafficking according to international standards.

As such, the Act, which now provides a formal definition of TIP, clarifies the legal regime and also aids the empowerment of enforcement agencies to tackle TIP. Recognizing children’s particular vulnerability to exploitation, this Act lowers the burden of proof for child victims.27 First-time offenders may now face up to 10 years imprisonment, a maximum fine of $100,000 and possibility up to six strokes of the cane.28 However, the Act is not without its flaws; some have criticised it as having too lenient penalties which are incommensurate with the detestable nature of human trafficking and its element of exploitation for profit. Non-constituency MP Mr Gerald Giam drew a comparison with the state of California, United States of America, where the maximum fine is US$1.5 million and 15 years imprisonment.29 Nevertheless, the Act is comparable to the penalty laid down in equivalent laws in Hong Kong, where there is a maximum of 10 years jail sentence for TIP offenders. Additionally, it can be argued that penalties enforced in Singapore are reasonable and work well with Singapore’s existing frameworks and laws as Singapore ensures that measures implemented are “enforceable and pragmatic”.30 In light of this, De Souza mentioned that the penalties have been established on two key principles, namely proportionality and deterrence. The penalties must be proportionate to those for similar crimes in our other criminal laws and should be severe enough to deter potential offenders.31 24 Channel NewsAsia, ‘New Bill against human trafficking aims to restore dignity, show compassion to victims’ (November 2014) < http://www. channelnewsasia.com/news/singapore/new-bill-against-human/1450708.html> accessed 17 January 2015 25 Ministry of Manpower, ‘Call for Stakeholders to Share Views on Human Trafficking Bill’ (March 2014) < http://www.mom.gov.sg/newsroom/ Pages/PressReleasesDetail.aspx?listid=550> accessed 17 Janurary 2015 26 ibid 27 Channel NewsAsia, ‘New Bill against human trafficking aims to restore dignity, show compassion to victims’ (November 2014) < http://www. channelnewsasia.com/news/singapore/new-bill-against-human/1450708.html> accessed 17 January 2015 28 Ministry of Manpower, ‘First Reading of the Private Member’s Prevention of Human Trafficking Bill 2014’ (Oct 2014) <http://www.mom.gov. sg/newsroom/Pages/PressReleasesDetail.aspx?listid=590> 29 The Workers’ Party, ‘Debate on Prevention of Human Trafficking Bill – NCMP Gerald Giam’ (November 2014) <http://wp.sg/2014/11/debateon-prevention-of-human-trafficking-bill-ncmp-gerald-giam/> accessed 17 January 2015 30 Ministry of Home Affairs, ‘Response Speech on Prevention of Human Trafficking Bill By Member of Parliament (Holland-Bukit Timah GRC), Mr Christopher De Souza’ (November 2014) 31 ibid at para 9

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The Act represents Singapore’s progress towards combating human trafficking – a welcome and long overdue development in protecting the human rights of modern slavery victims.

PROTECTION OF VICTIMS Nonetheless, academic review has identified the single-most problematic area with the Act: that it is not truly victim-centred.

Human trafficking has long been considered as nothing more than a “criminal justice issue” and often treated as a “victimless” crime. However, much effort has been invested globally in addressing the human rights abuses that come with human trafficking. These movements advocate for a human rights approach to the rehabilitation and reintegration of trafficked victims into society.32 Victims of trafficking are often the subject of serious human rights violations, which may lead to grave and lasting physical and psychological consequences.33 The importance of a victimcentred, rather than crime control, approach has been stressed.

The former approach allows for the recovery and reintegration of victims. Furthermore, “a strong enforcement arm is not effective unless the corollary victim protection and assistance is in place”.34 Moreover, assistance and support provided to trafficked persons are usually tied to their willingness to assist with law enforcement authorities in criminal investigations.

Not only do the low prosecution rates result in a lack of justice for victims but perhaps, also compound the idea that human trafficking is a “low risk crime”.35 Thus, it is important for states to intervene and implement anti-trafficking measures, as they are the primary responsible actors in the global effort to stamp out this clandestine crime. Though in most instances victims of trafficking may not be Singapore citizens, it is crucial now more than ever for the local government to cooperate and coordinate on regional and international levels in order to reduce the vulnerability of potential victims, providing support to presumed and current victims and implement strategies in accordance with international human rights standards.36 De Souza has highlighted that the Act does provide for support measures tailored according to the needs of the victims.

Moreover, the Director of Social Welfare may provide assistance to these victims such as temporary shelter and counselling services where he deems it “practicable and necessary”.37 Besides this, the Singapore Government, together with local NGOs, has been funding shelters and organising skills development programs for abused workers and victims of exploitation.38 He opined that “it was not pragmatic to mandate an umbrella suite of measures”39 beyond the provision of counselling and shelter, 32 Widney Brown, ‘21st Century Slavery - The Human Rights Dimension to Trafficking in Human Beings’ (Conference in Rome, Italy, May 2002) 33 Office of the High Commissioner for Human Rights, ‘Human Trafficking: a rights-based approach’ (December 2011) <http://www.ohchr.org/ EN/NewsEvents/Pages/HumanTrafficking.aspx> accessed 13 July 2015 34 Home Office, ‘UK Action Plan on Tackling Human Trafficking’ (2007) p.5 35 ibid p.25 36 distributed to implement alls for distributed responsnes from states upport to presumed and current victims and implement stratUnited Nations Institute for Training and Research, ‘Human Trafficking and the Role of Local Governments: Good practices, Challenges, and Ways Forward’ (2014) p.4 37 Widney Brown, ‘21st Century Slavery - The Human Rights Dimension to Trafficking in Human Beings’ (Conference in Rome, Italy, May 2002) 38 Ministry of Manpower, ‘Singapore Inter-Agency Taskforce’s official statement in response to the 2013 US State Department’s Trafficking in Persons (TIP) Report’ (June 2013) <http://www.mom.gov.sg/newsroom/Pages/PressReleasesDetail.aspx?listid=511> accessed 17 January 2015 39 The Straits Times, ‘Parliament: Human-trafficking law passed after debate on whether it goes far enough’ (November 2014) <http://www.straitstimes.com/news/singapore/courts-crime/story/parliament-human-traffickinglaw-passed-after-debate-whether-it-go> accessed 17 January 2015

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and was confident that victims’ needs would be met with the current provisions. In response to criticisms that the Act does not adequately protect victims’ interests by giving them the right to work during ongoing investigations, De Souza stated that many victims, fearing for their safety, preferred not to work.

Despite this myriad of victim-centric strategies that aim to tackle core issues that lie in the identification and protection of victims,40 a key flaw of the Act is that it makes no provision that victims will be exempted from prosecution for any immigration offences they may have committed as a result of being trafficked.41 As mentioned above, the failure to make such assurances could deter many victims from coming forward to report their situations for fear of being prosecuted themselves.42 While the Act does provide for the basic needs of victims to be met, more should be done to protect victims, enabling and empowering them to bring an action against the traffickers in court. In the UK, for example, there have been complaints made by the victims before the European Court of Human Rights (ECtHR) under Article 4 of the European Convention on Human Rights about the UK authorities’ failure to execute proper investigations. The absence of effective remedies and protection is a significant limitation to the effectiveness of any legislation.43 Hence, the ECtHR has had to step in to ensure that victims are not denied access to justice. In light of this, it is clear that scope of the Act in Singapore could possibly be extended to help victims by facilitating the reporting of cases and assisting prosecutions to avoid any denial of a victim’s access to justice.

Additionally, it is imperative to ensure the victims are offered adequate support to help them rebuild their shattered lives, in addition to high quality medical treatment and mental health support which the Act does cover. The significance of high quality and timely legal advice concerning issues such as immigration and redress should not be underestimated. While organisations such as AWARE offer legal advice and personal counselling to women in need, this only focuses on the protection of women and not children or men. From the UNODC report, it is evident that an increasing number of children and men are being trafficked.44 Accordingly, more support services should be set up and tailored to the different groups of potential victims. For example, in the UK, much emphasis is placed on offering potential victims the necessary legal support. The UK is required to provide legal aid to victims of trafficking under its international obligations and its legislation expressly provides for this. Moreover, legal professionals themselves are embarking on projects to further enhance victims’ access to justice. The Anti-Trafficking Legal Project, for instance, was implemented by legal practitioners to advise, represent and support victims of trafficking. In the United States of America, under the ‘Human Trafficking Legal Assistance Programme’, legal aid clinics are set up specifically for victims of trafficking. In Colombia, prosecutors receive specialised training to ensure that they are able to identify the appropriate prosecution tools in the context of human trafficking.

With more countries adopting initiatives to ensure an all40 Ministry of Manpower, ‘First Reading of the Private Member’s Prevention of Human Trafficking Bill 2014’ (Oct 2014) <http://www.mom.gov. sg/newsroom/Pages/PressReleasesDetail.aspx?listid=590> 41 The Workers’ Party, ‘Debate on Prevention of Human Trafficking Bill – NCMP Gerald Giam’ (November 2014) <http://wp.sg/2014/11/debateon-prevention-of-human-trafficking-bill-ncmp-gerald-giam/> accessed 17 January 2015 42 ibid 43 Kawogo v The United Kingdom (Application No. 56921/09) 44 United Nations Office on Drugs and Crime, ‘Global Report on Trafficking in Persons’ (2014)

rounded support programme for victims, in time to come, Singapore could put victims of modern slavery, their needs and their future at the heart of legislation, by ensuring that the legal justice system provides more comprehensive case management services. The bigger challenge perhaps is getting states to work with victims in a way that demonstrates their commitment to protecting the equality and dignity of all human beings.45 PARTNERSHIP The transnational nature of human trafficking has proven a challenge to its effective prevention. Traffickers typically work in criminal networks established on an international scale. In light of this, the primary responsibility rests with Singapore to address this issue with the co-operation of the other countries.

However, because the issue of transnational crime is closely related with national sovereignty, tensions between sovereignty and the protection against human trafficking are common.

Human trafficking calls for distributed responses from states and may sometimes be difficult to implement as state-based legal systems may inhibit cooperation across national borders.

The need for distributed solutions requires states to relinquish national sovereignty specifically in law enforcement and national security.46 While human trafficking can present a threat to the national sovereignty and integrity of independent states, effective cooperation in combating this crime requires the surrender of state sovereignty in support of the higher cause of protecting human rights.47 Therefore, Singapore must be careful in balancing strict border controls with the protection of human rights in the current context of globalisation.

The NPA emphasises the need for information-sharing and multinational cooperation in a bid to develop proactive safeguards to prevent the exploitation of victims in source countries. By holding regular meetings with foreign embassies, the Taskforce is able to work with them to discuss issues relating to TIP such as case referral, raising awareness amongst their nationals and encouraging them to come forward if they are victims of human trafficking. Moreover, it is extremely crucial that Singapore works closely with its global counterparts due to the transnational nature of the crime. Strengthening national legal and institutional frameworks called for the universal ratification and implementation of international instruments.

For example, Singapore has ratified the International Labour Organisation Convention 182 on the Worst Forms of Child Labour, which calls for the abolishment of the worst forms of child labour, as a matter of urgency. It is also crucial to strengthen partnerships between the origin and destination countries.

education on this aspect of partnership. Public education targeted at specific groups of people such as foreign workers and general members of the public who may potentially come into contact with trafficked victims is crucial. By promoting awareness about their rights and responsibilities under this law and reflecting on current challenges, there is an emphasis on the notion of social responsibility. This also echoes how Singapore attaches great importance to instilling social responsibility on different levels, and strengthening regional and global partnerships with stakeholders. In order for it to achieve its intended objective, the 4 Ps have to work hand-in-hand. Thus, critics argue that failing to address one aspect result in the effectiveness of the Act being limited, especially since partnership is a key tenet of the antitrafficking strategy.

Nonetheless, it is commendable that Singapore has stepped up its anti-human trafficking efforts on national and global levels and is working closely with members of the public to further enhance the effectiveness of the law.

CONCLUSION Despite the huge amount of debate on the passing of the Bill, De Souza was able to assure the House that victim support will be a priority despite the lack of its provision in the Act.49 He was firm that “one should not look at simple arithmetic to see how much or how many parts of the Bill are allocated to victim enforcement, prevention and so on”, but emphasised that the Act protects “the most vulnerable of the vulnerable - the innocent who often do not have a voice, and who are caught in a merciless web of exploitation”.50 It is incredibly assuring to see that Singapore is stepping up its fight against human trafficking through legal intervention as well as stakeholder engagement. In light of this, there is no doubt that Singapore has made significant progress to protect the vulnerable victims of human trafficking and work towards stamping out this clandestine crime. Human trafficking is ultimately a problem that has to be tackled simultaneously on different fronts, together with effectual multi-stakeholder cooperation with the government.

Additionally, under the NPA, the Singapore Inter-Agency Taskforce has recently launched the TIP Public Awareness Grant in 2014. Through the provision of this grant to individuals and organisations, the Taskforce hopes to support them in their efforts to raise awareness about human trafficking. In fact, it was recently reported that this scheme has proven effective and played a role in the reporting of suspected TIP crimes.48 However, the Act has been criticised for failing to address public 45 Widney Brown, ‘21st Century Slavery - The Human Rights Dimension to Trafficking in Human Beings’ (Conference in Rome, Italy, May 2002) 46 Cornelius Friesendorf, ‘Strategies Against Human Trafficking: The Role of the Security Sector’ (2009) p.384 47 UNISCI Discussion Papers, Ralf Emmers, ‘The threat of transnational crime in Southeast Asia: Drug Trafficking, Smuggling and Trafficking’ (2003) 48 Ministry of Manpower, ‘Stakeholder Engagement on Singapore’s Anti-Human Trafficking Efforts’ (February 2014) <http://www.mom.gov.sg/ newsroom/Pages/PressReleasesDetail.aspx?listid=545> accessed 17 January 2015

49 Ministry of Manpower, ‘Second Reading Speech on the Prevention of Human Trafficking Bill by Mr Masagos Zulkifli, Senior Minister of State for Home Affairs and Foreign Affairs’ (November 2014) <http://www.mha.gov.sg/ news_details.aspx?nid=MzI3OQ%3D%3D-x6M4DWCTDng%3D> accessed 17 January 2015 50 The Straits Times, ‘Landmark law against human trafficking passed after debate’ (November 2014) <http://news.asiaone.com/news/singapore/landmark-law-against-human-trafficking-passed-after-debate> accessed 17 January 2015

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By Wong Pei Ting

and traversing this boundary, she comes to achieve equal status.

The law, we have been led to believe, is a neutral institution by which the rights and obligations of everyone within its jurisdiction are upheld equally without prejudice. Yet, as a creature of liberalism, the law is stultified, plagued by the very same presuppositions liberalism falls prey to. That we come before the law as equals is a comfortable notion that we do not seek to challenge. This essay seeks to confront assumptions that have dominated in feminist discourse.

Criticisms of liberalism as ill-equipped to neutralise gender inequality come predominantly from the discipline of radical feminism. Etymologically, contrary to its plain English meaning, the term “radical” has no connotations of extremism. “Radical” politics has traditionally been employed to describe any political thought that requires a revolution, and has come to be a reference to progressivism.1 Radicalism is “not just bringing about change but controlling such change so as to drive history onwards”.2 The term “radical” therefore is a reference to a political agenda that involves “deep and fundamental social change”.3

In Part I, three ideas of feminism will be introduced to set the stage for further discussion: liberal feminism, radical feminism and multiracial feminism. In Part II, the notion of a gender neutral liberal state will be explored, and its basis challenged.

The essay will then go on in Part III to examine a catalogue of laws in Singapore that fail to adequately protect the interests of women. It will finally be concluded in Part IV that an overhaul in the law is needed in favour of an approach consonant with feminism.

I. A BRIEF INTRODUCTION TO FEMINIST DISCOURSES The pre-eminent school of thought of liberal feminism contends that the primary source of female inequality derives from gender role socialisation – whereby Man’s social role (The Breadwinner) affords him a higher status than Woman’s antisocial role (The Homemaker). Sex, the biological referent, is thus indistinguishable; in contrast, Gender, the social referent, is created through a combination of legal and social processes which produce inequality. In differentiating between Man and Woman, the law facilitates this differential socialisation. On addressing this imbalance through laws that promise formal equality, the Woman thus gains access to the Man’s social sphere, 135

Radical feminism, in contrast to liberal feminism, contends that the root of patriarchy lies not merely in imagined, sociallyconstructed differences. The source of female inequality on this account is fundamental biological differences between Man and Woman. Formal equality, therefore, is wholly inadequate and misconceived. It portrays sexism as a “surface problem”,4 as if through the use of gender neutral language Law and Society can deny the incontrovertible differences between the sexes.

In an unequal society, social equality must precede a liberalist framework of formal equality.5 Before such social equality is achieved, any solution that the liberalism project offers up will be biased. Because women are differentiated from men, they are said to be unequal; the law purports to erase all legal distinctions between men and women – but in so doing, men are retained as 1 Anthony Giddens, Beyond Left and Right: The Future of Radical Politics (Stanford University Press, 1994), 1 2 Id. 3 George B. Vold et al., Theoretical Criminology (1998), 260 4 Carol Smart, ‘The Woman of Legal Discourse’, in Tim Newburn (ed), Key Readings in Criminology (Willan Publishing, 2009), 772 5 Catharine MacKinnon, Towards a Feminist Theory of State (Harvard University Press, 1991)

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the standard by which women must be judged.6 To the extent that Woman is no different from Man, she avails herself to what Man possesses by virtue of being male. This portrays the solution to gender inequality as “some form of androgyny”.7 To insist on formal equality is to thus force women to be judged by values of masculinity.8 For example, the old defence of provocation in England presented itself as formally neutral, providing a defence to the crime of murder to any person who proved that they had lost self-control suddenly. A review of court statistics reveal that men who commit domestic homicide do so out of jealousy or rage, whilst women do so out of fear and despair.9 The result under the old law was that battered women trapped in abusive relationships who had killed their husbands following the loss of self-control in a slow-burn reaction pent up over a long period of time were unable to avail themselves to the defence. The law on provocation, designed with men’s conduct in mind but phrased in gender neutral terms, protects women only insofar as they conform to male behaviour.10 In recognition of the gender inequality perpetuated by the defence,11 it was repealed in 2009 and replaced with a new defence of the “loss of self-control”.12 Radical feminism thus forces us to confront the hypocrisy of a society which cries foul at the inequality of sexes but paradoxically chooses to institute equality from the male referent.

6 Smart, supra n4, 773 7 Id. 8 Id. 9 Jenny Morgan, Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told About Them (1997) 21 Melb. U. L. Rev. 237, 256 10 Caroline Forell, Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia (2006) Am. UJ Gender Soc. Pol’y & L. 27, 35 11 Law Commission, Murder, Manslaughter and Infanticide (2006) Law Commission Report No. 304 12 Coroners and Justice Act 2009, s 54

Despite these compelling arguments, radical feminism is crippled by criticisms by multiracial feminism that it is “essentialist”.13 Just as liberal feminism makes the mistake that men and women, as members of the human race, are homogeneous, radical feminism makes the mistake that all women, as members of the same sex and gender, are homogeneous. There is a challenge, in other words, in “acknowledging diversity among women while claiming women’s unity in experiences of oppression and sexism”.14 In truth, the radical feminist’s crusade for equality is the crusade for one type of Woman – the most ascendant and visible one. In Singapore, She is heterosexual, at least upper-middle class, and almost indubitably Chinese. Women, however, do not experience patriarchy in a unitary way. Hegemonic feminism, constructed around the lives of one type of Woman must thus be rejected, and intersections of dominance acknowledged.

Differences in the “structuring forces” of race, class and heterosexuality are not additive; conversely, they interact to produce a variant of distinct “social locations” for each subject.15 Similarly, the patriarchy does not necessarily serve interests of all men as a “unitary category”.16 The appropriate conception, therefore, as Smart put forth, is not that the law is sexist, or that the law is male; rather, the law is gendered – with room in which race, sexuality, class, age and other axes of discrimination may act.17 II. THE LIBERAL STATE: THE MYTH OF EQUALITY ‘Liberalism’ in this essay is used narrowly, referring specifically 13 Amanda Burgess-Procter, Intersections of Race, Class, Gender, and Crime: Future Directions for Feminist Criminology (2006) Feminist Criminology 1(1) 27 14 Daly and Chesney- Lind, Feminism and Criminology (1988) 5 Justice Quarterly 497, 502 15 Burgess-Procter, supra n9, 36 16 Smart, supra n4, 773 17 Smart, supra n4, 774

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to the notion of formal equality within the political philosophy of liberalism – or equality de jure. Singapore, at least as evinced from a catalogue of gendered laws which will be discussed below, takes a liberal stance; the laws thus fail to establish substantive equality – or de facto equality.

A liberal system lies on the basic premise that legal reasoning exists within a neutral framework. The law thus creates formally equal parties by setting up standards which apply equally to all. However, legal concepts are never neutral, and their legitimisation through the towering institution of The Law conceals insidious social truths as legal terms of art. Laws need not be inherently prejudicial for them to interact with preexisting social structure and create disadvantages. Through the law-making process, the male standpoint becomes the ‘objective standard’, and precisely because it dominates, it does not appear to function as a standpoint.18 Social dominance is thus rendered invisible, and “discrimination in society becomes nondiscrimination in law”.19 An illustration may be found in the context of equal pay in Singapore. In 2002, Singapore ratified the International Labour Convention’s Equal Remuneration Convention, thus holding itself to the principle of equal wages for men and women for work of equal value. The stage has thus been formally set for equal remuneration. Nevertheless, across all job titles, women are still paid less than men.20 A 2011 Ministry of Manpower study on the gender wage differential showed that women typically earn less than males, with the wage gap going as wide as 42% in blue-collar work, but “only 3% or less” in white-collar occupations.21 One wonders why there is a need for inequality to be mitigated through the use of qualifiers like “only” – as if women should be thankful that they are unequal by only 3%.

Nonetheless, the report justifies wage deferential as reflecting “the personal choice of women to take lower-paying jobs to concentrate on their families”.22 As a global phenomenon, women bear the unequal weight of domestic responsibilities like caregiving to children and other dependants.23 State policies on flexible working strategies are touted as better enabling a woman to juggle work and familial responsibilities,24 but merely reinforce the fact that even when they work, women are expected to shoulder dual burdens of the workplace and the home. Although the proportion of females with secondary education outstrips that of males,25 female employment rates are just over half of males, with sharp declines after the age of 25.

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‘choice”:26 A woman’s choice in an unequal society is, in reality, a mere Hobson’s choice. Social norms confer the illusion of female agency, but simultaneously remove its meaningful exercise, relegating domestic work like childcare as a woman’s responsibility and eliminating all merit of choice. Amidst this celebration of the ‘Twenty-First Century Woman’ and her ability to make informed choices, we have not paused to consider the social norms that sanctify a man who quits his job to care for his infant child. It is impossible to conclude that a woman’s choice is truly free until such social norms are neutralised.

The issue, therefore, “is not the gender difference, but the difference gender makes”.27 Women are different from men – that much is undeniable. But men are as different from women as the converse. The question we must then confront is why and how society has evolved to be such that a woman’s difference has become the standard of subordination.

The justification for the State’s liberal stance is that it should intervene only in the public sphere, leaving the private up to individual citizens. The State, therefore, declines to take a moral stance, thus maintaining the law’s strictly neutral veneer. Yet, in an unequal society, the public/private dichotomy is a false one, and non-intervention of the law ignores and crystallises existing status quo within the private sphere. Where social equality is illusory, the refusal to intervene means the preconditions of this true, substantive equality that the libertarian position requires to function justly cannot be established. Therefore, the decision not to intervene is, in itself, a moral stance. Once we understand this, the justification for the liberal view falls apart.

III. SINGAPORE AND GENDER EQUALITY: HIS(/HERS) TORY THUS FAR In 2002, after 24 years in place, a one-third quota on the intake of female medical students at the National University of Singapore was finally lifted, giving female students the equal opportunity to study to become doctors.28 Commenting in 1983, the late Mr Lee Kuan Yew, speaking then as Prime Minister, said that “we shouldn’t get our women into jobs where they cannot, at the same time, be mothers”, citing the fact that a woman cannot “be doing a full-time, heavy job like a doctor or engineer and run a home and bring up children”.29

Herein lies the crux of the problem: The liberal state purports to provide an equal plane for all to compete, then leaves success up to the individual will. Women are thus equipped with the finest education and an equal fighting chance at economic success, but later on in life choose to withdraw from the workforce to care for their families. However, this presents a “paradox of

Up till 2004, only male civil servants were entitled to claim medical benefits for their dependants.30 Taken by itself, this might say nothing more than a policy decision taken for its financial feasibility. However, the rationale behind this was put into words by then Deputy Prime Minister Lee Hsien Loong: “Because this is an Asian society, and in an Asian society the husband is responsible for taking care of the family, including the medical expense.”31 Yet, Asian society has apparently not paused to think it why it is that the husband has come to be responsible for a family financially, and the wife domestically.

18 MacKinnon, supra n5 19 MacKinnon, supra n5, 238 20 Ministry of Manpower, ‘Occupational Wage Table(s), 2013’ (Ministry of Manpower, 30 June 2014) < http://stats.mom.gov.sg/Pages/Occupational-Wages-Tables-2013.aspx> accessed 15 June 2015 21 Ministry of Manpower, Report on Wages in Singapore 2011 (2012) 22 Id. 23 Vivienne Wee And Sarah Hill, ‘Gender Dimension to Inequality in Singapore’ The Straits Times (18 October 2013) 24 Vicki Thein and Siobhan Austen, ‘Working Life, Working Family: The Case Of Professional Women In Asia’ in Therese Jefferson, Linley Lord, Nadia Nelson and Alison Preston (eds), Proceedings of Inaugural International Women and Leadership Conference (Curtin University of Technology) 25 Vivienne Wee and Evon Too, ‘Not Just Sugar and Spice and Everything Nice’ The Straits Times (12 October 2012)

26 Pei Chi Wong, ‘Recognising the Paradox of “Choice” on International Women’s Day’ IPS Commons (8 March 2013) 27 Catharine MacKinnon, Feminism Unmodified (Harvard University Press, 1988) 28 Ministry of Health, ‘Changes to the Medical Registration Act Schedule’ (Ministry of Health, 5 December 2002) <https://www.moh.gov.sg/content/moh_web/home/pressRoom/pressRoomItemRelease/2002/changes_to_the_Medical_Registration_act_schedule.html> accessed 23 June 2015 29 Lee Kuan Yew, ‘PM’s National Day Rally Speech’ The Straits Times (15 August 1983) 30 Ministry of Community Development, Youth and Sports, ‘Singapore’s Third Periodic Report To The Un Committee For The Convention On The Elimination Of All Forms Of Discrimination Against Women’ (2004) 31 Channel News Asia, ‘No change in medical benefits policy for women at present - DPM Lee’ (16 May 2002)

Social norms cannot be used to justify the very laws and policies that entrench them.

In that same year, Singaporean women were given the right to confer citizenship by descent on children born outside of Singapore in the same manner a Singaporean man could on his child,32 thus bringing Singapore in compliance with Article 9 of CEDAW.33 Acceded to by Singapore in 1991, the Convention seeks to promote equality of women. Nevertheless, Singapore maintains reservations to four substantive provisions of the treaty, citing the multi-racial and multi-cultural nature of Singapore’s society.34 Apparently, no thought had been given to the fact that Singapore is, on top of that, a ‘multi-gendered’ society. Reservations to Article 2 and 16 remain in place, the former which places a State under the responsibility to pursue “all appropriate means and without delay a policy of eliminating discrimination against women” and the latter which provides for equal rights to women on issues surrounding marriage. The rationale behind this has been due to the Muslim Law Act, which preserves the freedom of Muslims in Singapore to practise their personal and religious laws.35 Without denying that the right to religious freedom is crucial in Singapore, it cannot be ignored that these reservations deny all women – not just Muslim women – true equality within the society. Reservations are also in place for Article 11, which provides for the elimination of discrimination against women in the field of employment. In this regard, the Employment Act excludes from its ambit, inter alia, persons in managerial, executive and confidential positions.

This was justified on the basis that it was not a gender distinction, and therefore not discriminatory to women.36 Nonetheless, this fails to consider that the Act inevitably leads to two axes of discrimination – level of qualification, and inevitably gender.

Within each income bracket, as the gender which is underpaid, it will be women who will be discriminated against.

In spite of the aforementioned developments, it might surprise some that there is no constitutional guarantee for the equality of women – Article 12 protects against discrimination only on the grounds of religion, race, descent or place of birth. Whilst this may not in itself signify that gender discrimination is rife in Singapore, the message this sends out about the legal status of women within Singapore is clear when the highest laws of the land fail to accord gender equality.

At the foremost of issues concerning the protection of women is the exception in the law of rape for legal spouses. The Penal Code provides a legal defence to a man who has forced his wife into non-consensual sex, defining spousal rape out of existence.37 It is thus a legal impossibility for a man to rape his wife. In 2008, an amendment to the relevant provisions removed the blanket immunity for married couples, introducing narrow exceptions in which non-consensual sex with one’s legal wife was considered a rape: where there is a protection order in place, or where the parties have commenced divorce or separation proceedings and are living apart. Notably, a woman who is still living with her husband, despite the commencement of proceedings, is still legally obligated to have sexual intercourse with him. The legislation is an antiquity of colonial British law, although it has 32 Ministry of Community Development, Youth and Sports, supra n25 33 Ministry of Community Development, Youth and Sports, Singapore’s Fourth Periodic Report To The Un Committee For The Convention On The Elimination Of All Forms Of Discrimination Against Women’ (2011) 34 United Nations Committee on the Elimination of Discrimination against Women, ‘Report of the Committee on the Elimination of Discrimination against Women’ (20 July 2001) 35 Id. 36 Id. 37 Penal Code (Cap 224, 2008 Rev Ed) s 375(5)

long been abolished in the English jurisdiction since 1991.38 Many varying justifications have been advanced for its retention, but the one factor they all share is that they are all anachronistic in the context of modern Singapore. It has been argued that sexual relations are to be expected within a marriage.39 This appears to neglect that, in marriage, there are many expectations.

Society might expect that a wife cooks for her husband but – putting aside any reservations as to the reasonability of such an expectation – there is no legal obligation and certainly no legal defence for any man who is subsequently violent to a wife who refuses to cook for him.40 Other proponents of the defence have cited the difficulty of proving lack of consent in marriage due to the nature of the spousal relationship – but this is merely an evidentiary obstacle present in all criminal cases. It would be deterministic to decline to criminalise spousal rape on the basis that it cannot be proven. A final justification lies in the reluctance to “interfere in the bedroom”. This epitomises the state of affairs which has been critiqued in the preceding sections: the public/private dichotomy is merely a distraction from the true problem at hand. To wash one’s hands of the problem is hardly a satisfactory solution.

The existence of the defence stands for the proposition that a woman, upon her marriage to a man, loses her legal right to refuse sexual intercourse with the man who has promised to “love and to cherish” till death do them part. In other words, the law stands for the proposition that a woman has the obligation to have sex with her husband, even if she has a good reason not to, or even if this obligation potentially violates her further rights to protect herself against sexually transmitted infections or unwanted pregnancy – consequences of which she must live with. The retention of this legal defence is a clear message that, even in 2015, we value a man’s right to sexual pleasure more than we value a woman’s right to bodily integrity. Rape is not merely non-consensual sexual penetration – it is an act of dominance on the perpetrator’s part, and subordination on the victim’s part.

It has the potential to do violence to a victim both physically and emotionally. The trauma that results from it is true regardless of whether the perpetrator is a spouse.41 These are not theoretical arguments argued in a vacuum, isolated from the reality of the consequences of marital rape: in PP v N,42 the court was presented with evidence that the defendant had tied up his wife and forcefully had sexual intercourse with her. Nonetheless, the presence of the defence endorsed by the law meant that he was acquitted of rape. Despite the presence of alternative lesser charges that fall short of rape, it is the message that the lack of legal protection against spousal rape sends. It implies a woman is her husband’s property, subject to his sexual demands, thus dehumanising and denigrating her into an instrument for sexual pleasure, devoid of any choice in the matter.43 However, not all laws in Singapore are so overtly discriminatory.

Rather, most are examples of indirect discrimination – laws which set the backdrop for an unequal society, typically through legal omissions. Such laws contribute to and ultimately endorse unhealthy social attitudes; their very existence sets a harmful precedent for society to follow. Since the law sets boundaries of our behaviour, as a corollary, anything the law neglects to 38 R v R [1992] 1 AC 599 39 Wong Pei Chi and Jolene Tan, ‘Let’s Call a Rape a Rape’, The Straits Times (24 January 2013) 40 Wong Pei Chi, Paroma Ray, Vivienne Wee and Nadzirah Samsudin, ‘The Right to Protection from Marital Rape’ (AWARE, 10 December 2012) < http://www.aware.org.sg/2012/12/the-right-to-protection-from-marital-rape/> accessed 23 June 2015 41 Id. 42 [1999] 4 SLR 619 43 Wong Pei Chi, Paroma Ray, Vivienne Wee and Nadzirah Samsudin, supra n35

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mention is, by default, allowable.

Recent discourse on the Women’s Charter reveals its potential for promoting social inequalities. The Charter, which covers the rights and responsibilities of parties in a marriage and governs family and marital law provides only for spousal maintenance for an ex-wife payable by an ex-husband upon dissolution of the marriage. However, this reflects the unhealthy notion that a man – and not a woman – is the head of the household with the responsibility to provide financially. Therefore, the concept that a husband has the legal status of head of household might be interpreted so as to perpetuate stereotypical gender roles in the family and reinforce discrimination against women.44 Such unhealthy stereotypes are similarly perpetuated in the approach to parental leave. A woman is entitled to 16 weeks of government-paid maternity leave.45 It was only in 2013 when a one week government-paid paternity leave was instituted.46 In addition, parents can choose to convert one week of maternity leave into shared parental leave such that the father may be entitled to paid leave as well.47 Therefore, a father will enjoy, at the most, two weeks of paternity leave, in contrast to the 16 weeks a woman is guaranteed. The rationale behind this has been dictated by rigid gender roles which cast men as breadwinners and women as caregivers. Nonetheless, this perpetuation of obsolete gender norms is neither realistic nor fair for women and men living in today’s world, depriving couples of the ability to share parental duties effectively, and neglecting the needs of working Singaporean women.48 Singapore’s laws are also worryingly silent on the issue of workplace harassment. A 2008 survey shows that a staggering 54% of 500 surveyed people were victims of workplace sexual harassment.49 Whilst both men and women were victims, women were categorically targeted to a greater extent. Beyond already criminal acts like rape, molest and assault, little can be done about milder forms of sexual harassment like sexual innuendo, physical touching or lewd comments – all of which are as unwelcomed as their more serious forms of sexual harassment.

Notwithstanding this, current workplace safety legislation like the Workplace Safety and Health Act and the Employment Act make no mention of the problem. Whilst protection of women at the workplace is crucial as a matter of principle and a statement of commitment to the equality of women in society, it is additionally important for worker’s health and subsequently business productivity.50 In 2014, the Protection from Harassment Act was passed, thus providing some reprieve on this front. Nonetheless, it fails to adequately provide protection for women at the workplace. The need to prove alarm or distress caused to the victim is a message that sexual harassment is acceptable if the victim is made to feel anything short of alarm or distress. Often, the result of sexual harassment is embarrassment, humiliation, discomfort, anger, 44 United Nations Committee on the Elimination of Discrimination against Women, supra n29 45 Child Development Co-Savings Act (Cap 38A. 2002 Rev Ed) 46 Ministry of Social and Family Development, ‘2013 Marriage and Parenthood Package: Enhanced Leave Schemes Take Effect From 1st May 2013’ (Ministry of Social and Family Development, 29 April 2013) <http://app.msf. gov.sg/Press-Room/2013-Marriage-and-Parenthood-Package> accessed 23 June 2015 47 Child Development Co-Savings Act, supra n40 48 AWARE, ‘Gender Equality Must Take Centrestage in Shaping Population Policies’ (AWARE, 9 November 2012) < http://www.aware.org.sg/2012/11/ gender-equality-essential-to-population-policies/> accessed 23 June 2015 49 AWARE, Research Study on Workplace Sexual Harassment (2008) 50 Corinna Lim, ‘Stop Workplace Sexual Harassment for Workplace Safety’ The Straits Times (15 June 2015)

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disgust, frustration or guilt.51 These are feelings that will not fall under alarm or distress, but are no less harmful or damaging to a victim’s psychological health. Whilst the Act provides for civil claims of compensation for victims, it does little to solve the problems that were pre-existing even before its inception – that the current criminal justice system is inadequate to deal with the particularities of workplace harassment. A victim of workplace harassment may incidentally seek vindication and compensation, but these remedies fail to provide a safe workplace for the victim – the paramount concern. Because of the lack of regulations, companies are ill-equipped to deal with the problem, with some denying that “such a problem exists in Singapore” despite glaring evidence to the contrary.52 A specific workplace harassment legislation should provide explicit legal protection against workplace sexual harassment – whether it amounts to alarm or distress, women and men alike should have the right to work unhindered in a professional environment.

It should also impose affirmative duties for employers in preventing sexual harassment.53 IV. TOWARDS A FEMINIST JURISPRUDENCE “The worst form of inequality is to try to make unequal things equal.”54 Debates about gender equality degenerate easily into a crossfire pitting one viewpoint against another. Juxtaposing the violent gang rape on a bus in Delhi of an Indian woman in 2012 against the state of affairs in Singapore, some may feel that a feminist discourse of the law is unnecessary. After all, in Singapore’s report to the United Nations on CEDAW, the representative had commented that Singapore’s laws and policies were, on the whole, gender neutral, and did not hinder the overall advancement of women.55 Undeniably, there is a distinction between a society where feminist activism is needed to stop honour killings, infanticide or female genital mutilation on the one hand, and a society where feminist activism is needed to institute equal wages on the other. Placing 59th of 142 assessed countries in a study of gender equality in 2014,56 Singapore is, by all measures, a comparatively progressive country for women. Whilst she may not be the world’s most unequal nation for women, it would be a delusion to believe that Singapore is at its peak of gender equality.

The laws we have taken for granted to be neutral are thus not as objective as they appear to be. Liberalism rationalises female subordination by presuming it is non-existent; that equality between the sexes is society’s basic norm.57 The liberal approach embodies inequality in law because it can only reflect existing social relations under the guise of objectivism.58. The challenge lies in achieving a feminist approach that will not be stigmatised as protectionist or particularised, but committed to ameliorating women’s condition.59 This essay does not purport to provide any answers to a complicated question – it merely seeks to challenge the status quo which we have accepted as objective truth. Armed with such awareness, we can begin to move towards better Law and Society – not for Men, nor for Women, but for People.

51 AWARE, supra n44, 25 52 Id., 28 53 Id., 44 54 Laurence J. Peter, Aristotle’s Axiom, in People and Their Marvelous Ideas (William Morrow and Co, 1979) 55 Ministry of Community Development, Youth and Sports, supra n25 56 World Economic Forum,The Global Gender Gap Report (2014) 57 MacKinnon, supra n5 58 Id. 59 Id.

UNIVERSAL RIGHTS, ASIAN VALUES: AN END TO THE DEBATE?

By Esther Lim

The Asian Values debate continues to influence policy in Asian countries despite outspoken international criticism. This article seeks to explore the theoretical underpinnings and practical application of the debate, while making suggestions for improved human rights discourse in Asia.

Image: imgcomplex.com

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INTRODUCTION Since the establishment of the African Court on Human and Peoples’ Rights in 2004, which joined the European Court of Human Rights and Inter-American Court of Human Rights as regional human rights bodies, there has been a noticeable lacuna in the field of international law in the form of the lack of a Pan-Asian Court of Human Rights. There is little human rights protection in Asia on a regional level: only limited parts of Asia operate under regional charters such as the European Convention on Human Rights and the Arab Charter on Human Rights, and ASEAN’s non-legally binding ASEAN Human Rights Declaration has been widely criticised by ASEAN civil society and international human rights organisations.1 Furthermore, although many Asian countries are signatories of international conventions of human rights, on the whole, human rights protection in Asia remains largely confined to a national level.

With regards East Asia and South East Asia, as the region becomes increasingly integrated into global markets, pressure on governments to comply with international human rights norms has increased.2 As such, a number of reasons have been put forth for the absence of regional human rights protection; for instance, it is often argued that that Asians have a cultural preference for conciliation over adjudication, thus resulting in an aversion to a regional human rights court,3 and that many Asian countries must promote economic development at the expense of human rights protection. However, central to this debate is the concept that “Asian values” differ from “Western international human rights standards”.

South East Asia hosts two of the most vocal and frequently publicized apologists of the Asian values movement – Lee Kuan Yew of Singapore and Mahathir Mohamed of Malaysia. As a result, much of the human rights discourse in South East Asia has been informed by the pro-Asian values approach. However, a body of activists, opposition political parties and academics continue to challenge their governments’ insistence on the Asian values discourse and argue for greater human rights protection.

This essay examines the Asian values debate by examining the underlying theories of universalism and cultural relativism, as well as how well the theories fare in practice, before making recommendations for how the debate can better inform the development of a global system of human rights.

THE ASIAN VALUES DEBATE “Asian values” is a term devised by several Asian officials and their supporters for the purpose of challenging “Western”style civil and political freedoms. Mahathir Mohamad and Lee Kuan Yew have argued that the idea of universal human rights is an alien imposition from the West and a reflection of Western ideals, which do not apply to Asia.4 Contrary to the West, which prioritise social and political rights, Asians place special emphasis on family values and social harmony over individualism and are culturally predisposed to respect for authority and hard work, allowing for liberal economic policies to be pursued at the expense of liberal democracy.5 As a result, 1 American Bar Association Rule of Law Initiative, “The ASEAN Human Rights Declaration: A Legal Analysis” 2 Joanne R. Bauer and Daniel A. Bell, “Introduction” in Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge University Press 1999) 3 Ben Saul et al, “The Last Frontier of Human Rights Protection: Interrogating Resistance to Regional Cooperation in the Asia-Pacific” [2011] 18 Australian International Law Journal 23 4 Tew, Y, “Beyond Asian Values” [2012] University of Cambridge Centre of Governance and Human Rights Working Paper 5 5 Daniel A. Bell, “Introduction: The Theory, History and Practice of

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Asian values have been used to legitimise policies such as the criminalisation of homosexuality and government restrictions on freedom of the press.6 Notwithstanding this, apologists assert that Western societies should hesitate to intervene in Asia for the sake of promoting human rights. As Lee Kuan Yew put it, Asians have “little doubt that a society with communitarian values where the interests of society takes precedence over that of the individual suits them better than the individualism of America.”7 In many ways, this debate is very much politically inspired.

Many countries criticised for human rights abuses were once under colonial rule and were victims of economic exploitation by developed countries. The “deeply felt bitterness about colonization”, though apparently fading, continues to play on national feelings, making Asian societies sensitive to Western political domination and the threat of cultural erosion.8 However, it would be simplistic to think of Asian states as using these grievances, and thus, the entire debate, as a means to rationalise domestic human rights abuse. Rather, the debate has given way to a developing area of knowledge and has opened up an opportunity for serious reflection on what is at stake here.

HUMAN RIGHTS AND UNIVERSALISM The debate on Asian values is part of a larger discourse within the human rights movement between the universalist and relativist school of thought.

Universalism refers to the theory that human rights are universal and capable of application in all cultures. It assumes that all societies have certain shared values and that rights are inherent and inalienable. Universalism gained stature on an international level in the aftermath of Word War II, which set “a new benchmark of barbarity” with the death of 60 million people, many of whom were minorities: Jews, Gypsies, Slavs, disabled individuals and homosexuals.9 The Universal Declaration of Human Rights (UDHR), the first and most important statement of shared values and ethics held by the world community, was thus seen as necessary after “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”.10 Subsequent human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), follow in the footsteps of taking a “universal” approach to articulating human rights.

Despite its popularity worldwide, it cannot be ignored that universalism faces problems as a theory. Firstly, there are epistemological problems moving forward to the question of whether there are universal moral rights to elucidating how we know which rights are universal. Unlike in scientific investigations, where there is a generally accepted and proven method for testing the veracity of claims, there is no right way to resolve moral disputes.11 It is, after all, not uncommon for reasonable people to continue disagreeing on moral issues even after both sides have fully aired their views. Although universalism maintains that there are right answers regarding Political Democracy” in Daniel A. Bell and Chenyang Li (eds.), The East Asian Challenge for Democracy (Cambridge University Press 2013) 6 C. Y. Hoon, “Revisiting the ‘Asian Values’ Argument Used by Asian Political Leaders and Its Validity” [2004] 32 The Indonesian Quarterly 154 7 Quoted in the International Herald Tribune, 9–10 November 1991 8 Diane Mauzy, “The human rights and ‘Asian values’ debate in Southeast Asia: Trying to clarify the key issues” [1997] 10 The Pacific Review 210 9 Lynn Hunt, “Inventing Human Rights: A History” (W. W. Norton & Company, 2008) 10 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Preamble 11 Randall Peerenboom, “Beyond Univeralism and Relativism: The Evolving Debates about ‘Values in Asia’” [2003] 14 Ind. Int’l & Comp. L. Rev. 1

morality, it is silent regarding how we may justify which answers are indeed right.

Additionally, when applied in practice, universalism loses much of its helpfulness. At a high level of abstraction, many moral claims appear uncontroversial12 – for instance, that it is immoral to murder. However, when general principles must be applied in particular circumstances, universalism is less accurate in making specific judgments – for instance, even in Western countries, debate on whether abortion and euthanasia count as murder and are thus immoral, or whether there exist rights to reproductive freedom and assisted suicide respectively, rage fiercely.

CRITICISM OF CULTURAL RELATIVISM We must then ask ourselves if cultural relativism, which lies on the other end of the spectrum from universalism, fares any better. Traditionally, relativism consists of three propositions: that “right” can only be coherently understood as meaning “right for a given society”, that “right for a given society” is to be understood in a functionalist sense, and, therefore, that it is wrong for people in one society to condemn or interfere with the values of another society.13 The concept was championed by anthropologist Franz Boas, who used cultural relativism as a challenge to the historical assumption of Western superiority.

Boas argued against predominant Victorian anthropology, which followed a racist line that darker-toned, “primitive” persons were of lower evolutionary stages than lighter-toned persons, and consequently lacked mental capacity due to inherent biological differences. Boas instead believed that thought, action and choice, whether “primitive” or “civilized”, were largely determined by the particular body of tradition and custom “that has been controlling all our actions since the time of our birth.”14 Consequently, many early critics of human rights argued that moral differences come from a lack of shared values between cultures rather than the idea that any one approach is universally correct. The attempt to develop a global ethic was thus criticised for coming at the expense of tolerance for the traditional practices of other peoples. During the United Nations debate about the UDHR, the American Anthropological Association issued a statement declaring that moral values are relative to cultures and that there is no way of showing that the values of one culture are better than those of another.15 In the same vein, Herskovits said, “We must recognise that the pluralistic nature of the value systems of the world’s cultures … cannot be judged on the basis of any single system.”16 As a result, relativists question the universality of human rights, and have argued that human rights, as conceptualised by UDHR and other international human rights instruments, reflect Western concepts rather than cross-cultural values.

Though historically well meaning, cultural relativism has been criticized from many different grounds. Epistemologically, the concept is paradoxical and self-contradictory in that it argues that there is no universal morality while asserting that one should not criticize or regulates others moral views as all opinions are 12 Richard J. Arneson, “Rawls versus Utilitarianism in the Light of Political Liberalism” in The Idea of a Political Liberalism: Essays on Rawls 13 Bernard Williams, “Morality: An Introduction to Ethics” (first published 1972, Cambridge University Press 1993) 14 George W. Stocking, “Franz Boas and the Culture Concept in Historical perspective” [1966] 68 American Anthropologist 867 15 The Executive Board, American Anthropological Association, “Statement on Human Rights” [1947] 49 American Anthropologist 539 16 Herskovitz Melville, “Cultural Relativism: Perspectives in cultural pluralism” (Random House, 1972)

as good as each other.17 As the relativists’ call for tolerance is a moral claim, the argument makes universal assertion while denying the possibility of universal claims.

Moreover, cultural relativism has also received many significant blows in the political arena due to its frequent use by dictators to justify human rights abuse. Relativism lacks definite guiding moral principle, and its totalising quality causes it to tend towards moral minimalism, even moral nihilism. Used in its most indiscriminate state, it can subvert almost any argument.18 As a result, relativism is frequently employed by authoritarian forms of governance, from apartheid in South Africa to Suharto’s dictatorship in Indonesia.

Additionally, cultural relativism is very much built on the idea that different cultures are so radically different that they cannot be understood by other cultures, and consequently, cannot be criticised or deemed to be wrong. However, this stance has been criticised from a scientific perspective. The work of cognitive scientists has shown that many features of human cognition are universal due to a shared neural architecture, despite the impact of cultural forces on the expression of this architecture.19 It thus cannot be assumed that members of different societies and cultures come from such different worlds that each cannot understand or judge the other’s structures.

Finally, even anthropologists, generally credited with popularizing the notion of cultural relativism, have also begun to criticize its traditional conceptualisations. Notably, modern anthropologists argue that cultural relativism tends to exaggerate the internal coherence of individual cultures, while at the same time overstating the differences between societies and underestimating the possibility of transcending these differences.20 Relativism assumes “stable and bounded ‘islands’ of cultural distinctiveness”21 – what Thomas Eriksen calls an “archipelago” theory of culture22 – which simply does not pan out in reality. In a globalized, interconnected world, cultural barriers are crossed on a daily basis. Evolutionary analysis shows that societies do indeed change their customs as their economic, technological and scientific capabilities develop.23 Thus, contemporary anthropology now asserts that cultures are not fixed, bounded entities, rather, they are internally diverse, and individuals may belong to more than one.

THE “ASIAN VALUES” DEBATE IN PRACTICE At this stage, we have established that though cultural relativism has taken several significant hits on a theoretical level in recent years, universalism is not an unflawed theory either. We must now turn to the significance of these criticisms in practice by considering the tension between Asian values and Western liberal democracy.

Just as many academics have attacked the view that cultures are fundamentally different and incomparable, it has been argued that it is incorrect to assert a strict dichotomy between Asian and Western value systems. In fact, Inoue Tatsuo has written 17 Moral Relativism, Internet Encyclopedia of Philosophy http://www. iep.utm.edu/moral-re/ 18 Michael F. Brown, “Cultural Relativism 2.0” [2008] 49 Current Anthropology 363 19 Ibid.

20 Ibid.

21 Ira Bashkow, “A Neo-Boasian Conception of Cultural Boundaries” [2004] 106 American Anthropologist 443 22 Thomas Eriksen, “In which sense do cultural islands exist?” [1993] 1 Social Anthropology 133 23 Elizabeth Zechenter, “In the Name of Culture: Cultural Relativism and the Abuse of the Individual” [1997] 53 Journal of Anthropological Research 319

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that asserting that liberal democracy as a Western culture system alien to Asian culture is couched in “West-centric misperceptions of Asia”.24 He argues that the assumption that Asian culture is fundamentally different from the West owes its roots to Western intellectual imperialism, or “Orientalism”. Orientalism, most prominently criticised by Edward Said, assumes that it is only the more developed West that can understand and conceptualise Asia through colonization. Orientalism was thus used to establish Asia as the “Other”, so that it could establish the West’s own identity as the historical agent that created the modern spirit and civilisation, thereby establishing Western hegemony over Asia. Tatsuo thus argues that such a dichotomy that “denies the internal diversity and transformative potentials of Asian societies” and perpetuates a belief that “the Asian economy is capable of development although Asian politics is not.”25 Tatsuo asserts that to take advantage of the Orientalism stereotype of Asia to suppress human rights discourse and minority value systems within their own societies is ironically to “promote the Western self-sanctification internally coupled with this prejudiced stereotype of Asia.”26 Instead, Asia should break the stereotypes cast by Orientalism and contribute to the development of liberal democracy discourse.

Additionally, the strict dichotomy of “East” and “West” as imagined in the Asian values debate is simply not evident in practice. Asian values proponents often assert that Westerners place special emphasis on civil and political rights while Asians care more about social and economic rights.27 However, contrary to this, the welfare states of Western Europe have a relatively good record of implementing such rights. Moreover, some economically successful Asian societies, such as Japan, Taiwan and South Korea, have been lauded for their relatively egalitarian form of economic development, though other Asian states such as China and Singapore prioritise market-driven growth over human rights. Nevertheless, Asia and the West are thus not as uniform as proponents of the Asian Values debate would like to believe, and the assumption thus cannot be a ground to reject external criticism.

Further, the Asian values debate has been criticised in light of how many Asian states have modernised under the Western model of capitalism, bringing to mind the attacks on relativism due to globalisation. Jack Donelly argues that just because human rights ideas first emerged in early modern Europe does not make these ideas any less applicable in East Asia today. The ideas and practices were designed to protect individuals against “the power of ever more intrusive states and the gruelling indignities of free market capitalism”.28 As Asian societies develop and face changes due to the rise of increasingly powerful central governments and free, capitalist markets, there is no reason why a culture of human rights should not evolve in Asian communities so as to protect vulnerable and dispossessed individuals in these contexts.

Thus, despite the drawbacks of cultural relativism as a theory, the idea of culture is still a useful intellectual tool so long as it acknowledges cross-cultural differences without denying the possibility of comparison or criticism. However, it is important that Asian politicians abandon their insistence on a separate value system and instead contribute to a dialogue on how we can make international human rights a more inclusive regime that is applicable in different cultural contexts.

To do so, it is important to grapple with the perception that most international human rights groups interpret and prioritize rights according to Western ideals and have not adequately incorporated non-Western views. David Kennedy has described the human rights movement as having “tainted origins” and is the product of specific cultural and historical forces – mainly, “Post-enlightenment, rationalist, secular, Western, modern, capitalist”30 – while claiming to be universal. This results in problems of application in the diversity of experience outside the Western context. Onuma Yasuaki has criticized the Western biases inherent in the application of the existing human rights regime, arguing that Westerners have miscast the human rights debate as an issue of universality versus particularity, with “Islam” and “Confucianism” representing particularity while “Christianity” and “the European way” express universal values.31 Yasuaki thus points out that there is consequently little room to argue that something non-Western could be universally valid at all.

Thus, I would argue that Asian values and cultural relativism do not undermine the importance of Asia developing a human rights regime. However, it does not mean that human rights as it has currently been conceptualized in the Western world should

It is thus necessary for thinking regarding international human rights assessment to become more balanced. Even within a relatively homogenous setting such as Europe, the European Court of Human Rights (ECtHR) created the doctrine of the margin of appreciation to accommodate national diversity and acknowledge that the understanding and application of human rights varies.32 It is thus not difficult to imagine that a similar doctrine is needed when moving into the international arena, where there is an even greater cultural, religious, political and economic diversity. Yasuaki thus proposes an “intercivilisational approach to human rights” which entails dialogue between

24 Inoue Tatsuo, “Liberal Democracy and Asian Orientalism” in Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge University Press 1999) 25 Inoue Tastuo, “Reinstating the Universal” in Andras Sajo (ed), Human Rights with Modesty: The Problem of Universalism (Springer 2004) 26 Ibid.

27 Jack Donelly, “Human Rights and Asian Values: A Defense of ‘Western’ Universalism” in Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge University Press 1999) 28 Ibid.

29 Randall Peerenboom, “Beyond Univeralism and Relativism: The Evolving Debates about ‘Values in Asia’” [2003] 14 Ind. Int’l & Comp. L. Rev. 1 30 David Kennedy, “The Dark Sides of Virtue: Reassessing International Humanitarianism” (Princeton University Press, 2004) 31 Onuma Yasuaki, “Towards an Intercivilisational Approach to Human Rights” in Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge University Press 1999) 32 Steven Greer, “The Margin of Appreciation: Interpretation and Discretion under the European Convention of Human Rights” [2000] Council of Europe Publishing, Human Rights Files No. 17

NEXT STEPS FOR THE DEBATE

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be adopted wholesale in Asia. As we have seen, there are problems with the concept of universalism as well. Because we cannot prove what is “right” in the first place, or easily conceptualise how rights assumed to be universal apply in more complex, morally grey areas, we cannot assume the Western conceptualisation of human rights is synonymous with what is morally right.

Universalism must therefore be considered as a spectrum.29 Extreme moral universalism holds that the correctness of moral issues does not depend on culture or the views of any group or individual, and that there is a single, universally correct moral answer that applies to everyone equally despite the possibility of other relevant factors. A moderate version of moral universalism holds that culture is irrelevant to the correctness of most, but not all, moral issues, and takes into account other factors such as the degree of economic, political or legal development. A moderate approach to universalism, and thus to human rights, must be taken so as to acknowledge cultural differences and allow for culturally-sensitive human rights discourse without descending into moral nihilism that may result from cultural relativism.

members of “civilizations” with the aim of achieving the widest possible consensus on human rights.33 This would go beyond political, emotional criticisms of West-centric universalism but instead look to a means of truly globalising human rights despite the diversity of religions, cultures and social customs.

In this respect, the African human rights system can be seen as instructive. In the preamble of the African Charter on Human and People’s Rights (ACHPR),34 African countries take into consideration “the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights”. Article 61 of the ACHPR allows the Commission to consider “African practices consistent with international norms on human and people’s rights, customs generally accepted as law, [and] general principles of law recognized by African states”. At the same time, drafters of the ACHPR explicity specified that “African specificities in dealing with rights” must not be read as “deviat[ing] from the international norms” in the international human rights treaties ratified by African States.35 As such, the idea of “African values” is not presented as incompatible with human rights, but rather as a particular expression of human rights in a regional context.36 In conclusion, the “East vs. West” construction of the Asian values debate grossly simplifies the struggles behind creating a global human rights order by reducing the debate to a matter of irreconcilable cultural differences. In reality, there are a number of benefits and drawbacks to both the doctrines of universalism and cultural relativism. It is important to keep in mind inevitable cultural differences by better incorporating Asian voices into the international human rights regime. It is only then that a stronger system of respect and concern for individuals can be ensured from the state. Though the debate is a politicised one deeply intertwined with feelings of national pride, it is in the best interests of all parties for a more constructive human rights discourse, which fully takes into account Asian experiences, to begin.

33 David Kennedy, “The Dark Sides of Virtue: Reassessing International Humanitarianism” (Princeton University Press, 2004) 34 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter) 35 B Obinna Okere, “The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems” [1984] 6 Human Rights Quarterly 141, citing the drafting record.

36 Ben Saul et al, “The Last Frontier of Human Rights Protection: Interrogating Resistance to Regional Cooperation in the Asia-Pacific” [2011] 18 Australian International Law Journal 23

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MUSINGS AND ADVICE ON A LEGAL CAREER

By Michelle Kang

Mr. Wilson Hue from Genesis Law Corporation reflects on his varied legal experiences in diverse settings, and offers some thoughts to students facing vital decisions regarding their legal career.

As law students near the end of their degrees, difficult decisions have to be made regarding the direction of their future legal careers. From choosing whether one should join the private sector or work in the government, to deciding between training with a big firm as opposed to its smaller-sized brethren, to selecting an area to specialize in, law students are confronted with difficult and thought-provoking decisions at every turn.

While there is no crystal ball into which one can gaze to obtain a definitive answer, Lex Loci spoke to Mr. Wilson Hue, a partner at Genesis Law Corporation, for his thoughts on these varied career options and advice for students embarking on their legal careers.

A lawyer for more than 20 years with legal experience in the judiciary, government and private practice, Mr. Hue began with a stint as a judicial officer in 1991. In 1994, Mr. Hue joined Helen Yeo & Partners (now Rodyk and Davidson LLP), subsequently returning to the Legal Service in 2001, serving stints in both the Civil and International Affair Divisions as a State Counsel. In 2009, Mr. Hue re-entered the private sector as a partner at Genesis Law Corporation.

Image: Flickr CC @ torbakhopper

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1. You’ve had an incredibly storied career – you’ve been in the judiciary, the government, and the private sector. How did you come to have such a varied experience?

I count myself fortunate in that every time I felt it was time to experience something new and to move on, the opportunity to do so presented itself. Each change was not without its challenges, of course, but looking back, I would not have had it any other way.

2. From our understanding, you’ve switched between the government and the private sector several times. How would you compare your experiences working in the government and the private sector in terms of working culture, the nature of the work etc.?

The nature of the legal work in the public sector can be very fulfilling. For instance, the decisions I made as a judicial officer often had a direct and significant impact on the lives of specific individuals (whether accused persons, the victims or parties to civil suits), and being in a position to do what I felt to be the right thing gave me a tremendous sense of satisfaction.

Similarly, some aspects of the work I did in the AttorneyGeneral’s Chambers had the capacity to affect society positively as a whole, even if only in a small way. Examples of these include advising government departments on how certain processes could be improved to enhance legal transparency and pushing for Singapore’s interests in international negotiations. That is not to say of course that private practice cannot be fulfilling. It is just that obtaining fulfilment in public service work was, for me, easier to achieve.

In so far as organizational culture is concerned, I have often been asked by my private sector friends whether there is a lot of internal “politicking” in public bodies. The truth is that politicking is present everywhere in the workplace and private practice is certainly no exception. It is something that we will just have to accept and learn to deal with. The degree of politicking is often more a function of the size of the organization rather than whether it is a private or public outfit. Having said that, one advantage a private organization has in this regard is tied to the fact that a private organization usually has a bottom-line that is often measured in dollars and cents. Such a bottom-line provides a quantitative criteria with which the contributions of a particular lawyer, and his worth to the organization, can be measured more objectively. In contrast, the outputs of a public officer are often much more amorphous. An assessment of the officer’s contributions to the organization then becomes less objective, which in turn increases the level of politicking in the organization as officers try to outshine their peers.

On the other hand, it is precisely because a private organization’s bottom line is measured in dollars and cents that the culture of a private organization is invariably demanding in terms of billing targets, billable hours and collections. When I was a young lawyer in private practice, I used to be aghast at the emphasis placed on billings and I thought that the quality of the work output should have been focused on instead (however, being now at the other end of things, I fully appreciate why, without in any way compromising on quality, it is imperative to keep a close eye on the firm’s revenues constantly). As a salaried lawyer, I had to continuously ask myself whether I was contributing to the bottom-line sufficiently so as to justify my remuneration. To me, this constant focus (some would say, obsession) on the bottomline is the single most pervasive and significant difference between the practice of law in the private and the public sectors.

On a related note, whilst in the public sector, I found myself being able to spend significant resources and time to find answers to legal questions or complete assignments. So long as I put in the hours and the work was done, there was no need to be conscious of how effectively or efficiently that particular piece of work had been carried out. In contrast, and in the context of private practice, it took me some time before I finally fully appreciated that a “good” lawyer is not necessarily one with the sharpest mind or the best legal skills. To the client, a good lawyer is one who can solve the client’s problems at a cost that is acceptable to that client. It was difficult, but there were times when for reasons associated with costs, I had to stop putting in more effort into specific pieces of work although I felt that the end product was not to my satisfaction. The clients were not looking for and were not prepared to pay for perfection.

Finally, I of course encountered a lot more bureaucracy and redtape in the public sector than in the private sector. However, in my view, bureaucracy is a necessary evil in any large organization, especially one running on public funds. It is bureaucracy that provides consistency and stability to weigh against the capriciousness and favouritism which excess flexibility can otherwise engender.

3. What motivated you to make these career changes?

For me, I am passionate about the law. I enjoy learning and debating about legal concepts and understanding how legal principles “click” into place in theory. I also obtain great satisfaction from seeing and experiencing the different ways in which the law works in practice. In this regard, my ventures into the judiciary, private practice (litigation and corporate work), the Attorney-General’s Chambers (in the Civil Division and in the International Affairs Division), have allowed me to do just that and to see the law in operation in different settings.

Obviously many other factors came into play at every stage of my life when I decided to make the career move, but this desire to see the “big (legal) picture” has been a common thread.

Incidentally, I have also had the privilege of conducting evening classes in the National University of Singapore (which does not qualify as a full immersion into academia but nevertheless gives a taste of it) and the only missing link in my legal experience is therefore the position of an in-house counsel in a private organization.

4. While the private sector has traditionally been the most common destination for fresh graduates, the legal service has proven to be increasingly popular in recent years. Based on your experience, what factors should students take into account in deciding whether they would prefer starting out in the public or private sector?

Some of the factors a young lawyer should take into account include: (a) How much do I value a structured training environment?

The public sector generally eases a young lawyer into the role more gradually and with more structured training. By and large, it is more ‘sink or swim’ in the private sector (which can of course be a boon for good swimmers). (b) Would I prefer to have my work supervised or to work independently? Except for judicial decisions which have to be made independently, the work output of a public officer is generally subject to much closer supervision by persons higher up in the hierarchy than the work of 146

a lawyer in the private sector would be. (c) How much do I enjoy or dislike non-legal projects and administrative work? You cannot avoid being part of committees and undertaking various administrative tasks and projects if you are a lawyer in the public service (which assignments may be law-related or may have nothing whatsoever to do with legal practice including organizing firm outings, dealing with organizational budgeting issues, planning renovations to premises, seeking accreditation awards such as Singapore Quality Class and the like). In contrast, a young lawyer just starting out in private practice is more likely to be swamped with legal files from the word go, with little time for anything else. (d) How important is private time to me? Generally speaking, a young lawyer in the public sector would have more time to pursue personal interests outside the office. However, this is not true across the board. Some of my good friends in the public sector and their juniors work hours which would put me to shame and conversely, young lawyers in some private firms seem to have enough time for the much touted work-life balance. (e) How well do I handle stress? Again, as a very general observation, the stress levels in the public sector for young lawyers seem to be lower than that experienced by young lawyers in private practice. A public service lawyer’s accountability is mainly to his immediate superior whereas a private practice lawyer may find himself answering to his partner, the client, the court (if in litigation practice) all the while keeping an eye on the billings. However, when a public officer becomes much more senior, it appears to me that the responsibility (and correspondingly the stress levels) generally increases and can often exceed that of lawyers in private practice.

5. Previously, you worked at Helen Yeo & Partners (now Rodyk and Davison) before becoming a partner at Genesis Law Corporation. How would you compare your experience working for a larger firm as opposed to a smaller one?

The larger outfits had resources and processes in place which made it easier for me to focus on the legal work at hand.

Problems with computers are thrown to IT support, HR will deal with staffing issues that arise, comprehensive and updated books and research tools are readily available, and there are enough lawyers with the requisite expertise to bounce legal ideas off. In a smaller outfit, it is self-help to a large extent. However, this arrangement ensures that the overheads are contained which in turn allows for greater control over finances and lower billing pressures all round. The smaller outfit also allows for a closer working environment (so long as all the lawyers and staff get along well of course!) and is generally more flexible with less bureaucracy to complain about.

6. In particular, is there any advice you would give to law students who are choosing between firms for their training contracts?

To me, the most important criteria a law student should look out for in a training contract is the quality of the training he or she would be receiving. Of course such information is usually not easy to extract from publicly available information. Nevertheless, it is a matter that can be raised at the interview which the student 147

will likely have to attend and which can also be ascertained with some diligence by asking around. It addition, there is no harm trying to find out the track record of that particular firm in terms of the percentage of trainees retained in previous years.

These are factors which should override concerns relating to the quantum of the training contract allowance being offered.

7. We also notice that you worked as an assistant registrar previously. What was your experience like being on the other side of the judicial bench, and what impact has it had on your subsequent practice My time as a judicial officer was an experience I will not forget (in a good way) and from which I certainly learnt a lot. There are many interesting, funny or poignant stories to tell, including the time I had sentenced two brothers to caning only to discover that they lived a stone’s throw away from me, or the effect on me of the parting words of a convicted drug trafficker whose hanging I was about to witness, or the grief of a foreign family trying to stop the autopsy of a loved one … but all these must be left for another time.

I should however state that it was interesting to observe the very wide discrepancy between the capabilities and the level of preparedness of different lawyers. In one instance, I overheard a particular lawyer (whose name I shall not mention) ask the accused person what charge he was facing – which is nothing exceptional if not for the fact that this occurred just before the trial was due to commence. In my view, a person is better off without a lawyer than with an incompetent or indifferent one. If the accused is unrepresented, the Court generally tries to bend over backwards to help. However, once a lawyer is involved, the Court is more likely to allow the adversarial process to take its course. There were of course also many conscientious and skillful lawyers who were inspiring and from whom I learnt much.

The numerous trials and hearings I had presided over obviously helped in my litigation practice. I was better able to appreciate the extraneous considerations and pressures faced by judges and to grasp more quickly the concerns voiced by the bench.

However, corporate and commercial non-litigation work now forms the bulk of my practice.

8. Unlike UK training contracts, rotation opportunities are more limited under a Singapore training contract, and many firms encourage trainees to select a particular seat with a view to qualification subsequently (eg real estate, corporate, litigation). How would you compare your experiences across litigious and non-litigious matters?

For me, litigation work was exciting and challenging. However, much like the passionate relationship of a new couple, it was also tiring and unpredictable. There were many more moments of heightened emotion with violent ups and downs (for those who view this as the epitome of an ideal relationship, litigation is perhaps your cup of tea). Non-litigious matters are like a long-term loving relationship that has matured over time. It is not devoid of excitement but would generally be much less of a roller-coaster.

9. What would your advice be to students who are struggling to choose which areas to specialize in? Are they any particular attributes that would suggest an inclination in favour of a certain area?

The ability to think logically, to persuade effectively and to present a complex idea simply and clearly are attributes all

lawyers should possess (apart, of course, from the ability to work really, really hard whether with or without complaining, but preferably without). However, in my view, a student should not specialize in litigation unless he or she is able to think quickly on his or her feet and more importantly, is able to stomach debate, disagreement, criticism and even some measure of acrimony. In short, there is some fire in the belly. This is not a prerequisite for performing well in any particular trial, but is a prerequisite to surviving and thriving as a litigation lawyer in the long run.

Corporate lawyers need the patience to plough through voluminous documentation and the concentration to still understand what they are reading at the end of it. The ability to draft and explain clearly is critical while an aptitude for thinking out of the box and finding creative solutions would be extremely useful as well. Many of these abilities and traits can of course be learnt along the way.

A student should not pursue conveyancing unless he or she is careful and meticulous to a fault.

If, after carefully considering all the options a student is still undecided, my view is that there is no harm in starting off with litigation. One or two years of litigation will give the lawyer a clearer appreciation of how the legal system really works and will stand a lawyer in good stead even if he or she subsequently shifts to corporate or conveyancing work.

10. Lastly, are there any other words you would like to say to young law students who are embarking on their careers?

Barring a few students who would have strong convictions as to exactly what kind of lawyer they would like to be, the vast majority of law students will have to struggle to find the right answer and fit for themselves. In this respect, there is no need to allow the dictates of others to define for you what “success” in legal practice means. You should sit down, honestly examine your own motivations and priorities, both as a lawyer and as a person, and work out for yourself what, to you, would constitute “success” as a lawyer. This can be similar to or very different from the traditional understanding of a successful practice, but you remain the master of that decision. You would then have a compass to guide you along your legal career, and an anchor to turn to when faced with the many difficult decisions and choices you will have to make along the way.

Finally, but not as an afterthought, I would urge young lawyers just embarking on their careers not to forget to lend a helping hand to their fellow lawyers and to members of society when the opportunity to do so arises. At the end of the day, perhaps one may find that that is ultimately what gives meaning to the practice of law.

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LAW IN THE COMMERCIAL WORLD

By Eva Teh Jing Hui

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for law undergraduates to set themselves apart from other candidates for internships and training contracts. One way to do so is to demonstrate commercial awareness, which has become a quality prized in lawyers at every stage of their career.

Yet despite the almost universal familiarity of the phrase, it seems difficult to come to a common understanding of what commercial awareness actually entails. In an attempt to demystify this elusive concept, we speak to two legal practitioners who have had ample experience in the business world and in their respective practice areas, both of which are rapidly growing sectors in the legal market.

From left to right: Mr. Benjamin Cheong, Mr. Nandakumar Ponniya

Image: World Property Journal

What qualities would a lawyer of the future possess? As the market evolves, lawyers must adapt to meet its demands and be careful not to be left behind. Clients are no longer satisfied with someone who can merely quote the law accurately; often what is required is lawyers that can go above and beyond giving legal advice to provide a dedicated, bespoke service honed to each client’s needs. Thus, not only do lawyers have to possess legal know-how, an acute business sense geared to the intricacies of each client’s field of work is indispensible. A sound sense of commercial awareness has thus become highly sought after and is oft quoted in relation to the changing legal job market. As Law Society President Thio Shen Yi has observed, Singapore’s legal sector is now an “employers’ market”,1 making it paramount 1 Thio Shen Yi “President’s Message: The ‘Phantom Menace’ of Oversupply” [2015] Law Gazette, April Issue < http://www.lawgazette.com. sg/2015-04/1276.htm> (last assessed 13 July 2015)

Mr. Benjamin Cheong, a partner at Singapore’s largest law firm, Rajah & Tann, has practised in Singapore, Hong Kong and Shanghai (as a foreign lawyer) and was recognised as one of Asia’s Leading Lawyers for IP by Chambers and Partners from 2009 to 2012, where he was lauded as being “smart, quick, precise, dynamic and on top of things”. Having had more than a decade of experience in advising multinational clients on Intellectual Property, Technology and Competition laws, his work has involved him in several high stakes litigation and arbitration matters in various jurisdictions, including cases heard before the Singapore High Court and the PRC Supreme People’s Court.

His practice encompasses Internet, social media and personal data protection issues and he has worked on a number of crossborder joint venture and mergers and acquisition deals across Asia. With his fluency in English, Mandarin and Cantonese, he has also travelled extensively across the PRC to lobby with government officials and judicial and administrative authorities for better IP protection for his clients.

Mr Nandakumar Ponniya, a Principal in the Dispute Resolution Practice Group in Baker & McKenzie.Wong & Leow, is seasoned in international arbitration with a focus on building, infrastructure and construction law. He regularly advises on infrastructure projects such as rail systems, oil and gas facilities, and utilities plants, as well as commercial and residential developments across the Asia Pacific region. Having been listed as a leading dispute resolution lawyer in Singapore, with Chambers Asia Pacific 2012 noting that he “has a full and comprehensive knowledge of international arbitration and good analytical skill in dealing with cross-border commercial disputes”, he has also gone on to be listed in the Guide to the World’s Leading Construction Lawyers 2013 and further identified as a “rising star” in the Guide to the World’s Leading Experts in Commercial Arbitration 2013. Additionally, Benchmark Asia Pacific 2013 has recognised him as a “leading disputes star” and “leading litigation star” in Singapore.

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1. First things first, Benjamin and Kumar share their perception of what commercial awareness is.

Benjamin defines it as “having knowledge of the current business trends and keeping abreast of the latest legal developments affecting commercial activities, both in Singapore and around the world”. Similarly, Kumar sees it as “an understanding of the wider business environment in which the clients operate, and knowing about the issues and challenges confronting them” and elaborates that its importance lies in that “in-depth knowledge of the particular industry and appreciation of market trends allow a lawyer to consider the issues from a broader perspective and provide pragmatic and tailored advice to his/her clients”.

2. As such, what is the importance that firms place on commercial awareness when assessing candidates in comparison to, say, academic achievements?

Benjamin, speaking from personal experience, first assesses a candidate based on academic achievement followed by commercial awareness but notes that he “would not hesitate to make an offer” even where “a candidate’s academic results may not be up to expectations but he/she demonstrates strong commercial awareness”.

Kumar explains that increasingly, “lawyers today are expected to be business partners with their clients” and accordingly, while “solid academic credentials are still essential…a candidate with the right aptitude in this sense would have that extra edge over his peers.”

3. A lawyer today is therefore expected to have both business knowledge in addition to legal know-how and may also perform an advisory role in a business’s strategic decisions.

What do you believe the impact of such expectations will be?

Benjamin gives his two cents: “I have once heard a client remark: “I want advisors, not reporters”. Clients are now looking to their lawyers not only to provide them with details of the law, but also to advise them on how to carry out their business activities in light of the current legal and regulatory landscape. This in turn will require lawyers not only to have in depth knowledge of the laws that apply to the issues at hand, but also to understand the client’s business needs, the client’s way of doing business and what the client wishes to achieve in a given business transaction.

As such, lawyers today must not only be content to be legal experts, but they also have to equip themselves with knowledge of the current business trends and to understand the business of the specific client.

I personally do not think that it will help firms stay more competitive or dilute the quality of legal work. Rather, the challenge facing legal firms is how to get their lawyers to think beyond the legal issues and to provide the client with commercially practical legal advice. Those firms which can successfully do so will be able to grow their practice.”

Kumar further adds that he believes that “as the role of lawyers evolves to one that is more deeply involved in their clients’ strategic business decisions, this will help to raise the overall standards in the legal market. Clients will clearly stand to benefit, as it becomes de rigueur for lawyers to go beyond their role of being a technician of law to one that provides commerciallyoriented advice to help further their clients’ business goals.

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Firms that excel in delivering such comprehensive strategic advice will be helping to add value to their clients’ business and will distinguish themselves from their peers.”

4. What advice would you give to law students looking to develop their commercial awareness and demonstrate it in their applications and interviews?

Benjamin shares that he read widely as a young lawyer and recommends newspapers such as the Financial Times and the Business Times, as well as magazines such as The Economist and The Times. He adds that he also “found it useful to interact with people from all walks of life to gain an understanding of how they function in their respective professions and industries.”

On demonstrating commercial awareness, Benjamin says: “Personally, it is always refreshing to see candidates having a wider perspective during interviews and this would set them apart from other candidates.

As a young lawyer, when I got involved in actual commercial transactions, I would speak to my supervising lawyers to understand the background of the deal and the commercial considerations that are driving the deal. This would give me a better overview of the entire transaction and it was very helpful when I needed to prepare advice and agreements for the clients.”

Kumar also shares his personal experience: “In my career, I have been fortunate to have worked with and across some of the brightest legal minds in Singapore. That gave me a great opportunity to observe first-hand how these stellar practitioners handled some of the most complex cases in this legal market. I also had the opportunity as a young lawyer to work on a number of major, cross-border matters. That provided me with excellent experience, for which I am grateful.

For law students looking to develop their commercial awareness, I’d suggest that for a start, they keep up to date on the latest developments in the business world and the legal sector. Work experience is another great way to start developing this trait - a stint in a law firm would be an obvious choice, but any commercial experience that exposes them to the workings of a business would be useful as well. Be sure to include any relevant work experience in your CV and applications, and be prepared to discuss them during the interview to highlight the skills learned and experience gained.”

5. In an increasingly globalised world, legal work has also evolved to take on a multi-jurisdictional element. How do you think law students can equip themselves to take on such demands?

Having studied in the United Kingdom himself, Benjamin shares that doing so is a “great opportunity to meet people from different backgrounds, countries and cultures” and gives the following advice: “Make full use of this opportunity. Develop friendships with these people and see how they live, think and react to different situations. You may be surprised to see that people from different nationalities view and react to the same situation very differently. Also, some of these people may become your life-long friends even after you graduate.

Also, take the time to travel while you are still studying to see more of the world. This will certainly broaden your horizons (not to mention that you may not have the time to travel once you start working).

If the opportunity arises, do internships in firms and companies that are located in countries other than Singapore. I have met several Singapore law students doing internships in Hong Kong while I was working there. You will be able to better appreciate the global nature of legal practice.”

thus “able to offer clients greater comfort in dealing with their matters, having familiarity with the underlying laws that apply”.

He notes that this is the case since “many of the underlying contracts in arbitration cases from this part of the world are still governed by English or New York law.”

Kumar notes, “staying on top of world news and international business trends is the first step to cultivating a broad outlook”.

He also explains the importance of cultivating a global mindset: “Given that a key component of multi-jurisdictional matters involves working with people of different cultures, a lawyer who is able to bridge cultural differences may be more effective in this area of work. Law students should hence actively seek out opportunities that expose them to people of different cultures and develop a genuine interest to learn more about them.

Travel or student exchange programmes are great ways to start cultivating this global mind-set, as is work experience that involves an overseas stint.”

8. Singapore has also recognised the global nature of legal work today and with the opening of the Singapore International Commercial Court (SICC), in addition to the Singapore International Mediation Centre (SIMC) and Singapore International Arbitration Court (SIAC), do you think these investments will yield returns in terms of developing Singapore as a hub for legal services?

6. What about industry-specific knowledge?

Benjamin acknowledges the myriad ways to gain such knowledge and names a few: “reading articles on these industries in newspapers and magazines, reading specialised law journals, joining industry groups (for example, the Franchising and Licensing Association of Singapore for the franchising sector), attending industry seminars and talks, having regular discussions with other lawyers who practise in the same areas of law and communicating with your clients in the industry.”

Kumar also advises reading industry journals, not just legal publications, and shares his personal experience: “My teaching commitments at the National University of Singapore (NUS) and the Singapore Management University (SMU) on international projects and construction law also require me to undertake research on specific industries, so that the course content is relevant and up-to-date. So, it’s not just the students who are learning -- it’s a continual learning process for me as well! I also regularly take part in industry-related conferences, which allows me to meet with people from the various sectors -- not just other lawyers -- and gain insights on clients’ ever-changing needs.”

7. What are some of the other skills and achievements that have been a boon to your career?

Benjamin spoke about his language skills, acknowledging that they “have certainly opened a lot of doors for me”, as well as his experience in commercial litigation. He adds: “In particular, [my language skills] gave me the opportunity to work in Hong Kong and China. I am able to work with Chinese and Chinese-speaking clients. Also, being able to speak directly with Chinese government officials and read Chinese official documents has enabled me to assist my foreign clients in China more effectively.

I did commercial litigation during the first three years of my legal career. The skills that I picked up during those years, such as advocacy skills, have enabled me to communicate better with others. This would prove useful in commercial negotiations and communicating ideas to my clients as a non-contentious lawyer.

As for Kumar, he reiterated that the education gained from working with or across the top lawyers in the country has been “indispensable”, as he learned about different aspects of the law, from client development to trial advocacy, just to name a few.

Additionally, he cited his multiple bar qualifications (Singapore, England and Wales, and New York) as being helpful, since he is

Benjamin makes a few observations: “In recent years, there is an increase in international commercial litigation work arising from the growth in cross-border trade and investment in Asia. The SICC was set up to allow Singapore to “have a piece of the international commercial litigation pie”.

The SICC will hear international commercial disputes including those governed by foreign law. This means that litigation cases that could not have been heard in Singapore courts in the past can now be heard in the SICC. It is hoped that with more litigants opting to use the SICC as their preferred mode of dispute resolution, more work will be generated for litigation lawyers in Singapore. However, it takes time to raise awareness of the SICC and to persuade parties to choose the SICC as their preferred mode of dispute resolution and the return of investments may not be immediate.”

Kumar has a more positive take, noting that: “For the past 15 years, Singapore has been growing its profile as an international arbitration hub, and has cemented its position as one of the most preferred seats of arbitration, with the SIAC today handling a predominantly international caseload.

The setting up of the Singapore International Commercial Court (SICC) provides the alternative of a court process and complements the commercial advantages of international arbitration. The establishment of the Singapore International Mediation Centre (SIMC) provides a consensual means (as opposed to an adversarial process) of resolving disputes, and places Singapore at the forefront of mediation offerings in the region.

These three entities -- SIAC, SICC and SIMC -- provide clients with the flexibility to choose the process that best suits their needs. I have no doubt that these developments will boost Singapore’s status as the preferred venue for dispute resolution in Asia.”

9. Intellectual Property and International Arbitration are two fields that have shown immense growth; how do you think your respective practice groups will continue to develop in Singapore?

Benjamin acknowledges that the Intellectual Property law practice is set to grow in Singapore and explains the trend: “One of the reasons is due to the IP Hub Master Plan that was launched by the Singapore government in 2013. In a nutshell, the Master Plan is a 10-year plan that sets out a vision for Singapore as a global IP hub in Asia. As a result of the Master Plan, it is envisaged that IP filings, IP dispute resolution and IP commercial transactions in Singapore will increase. We will continue to expand our practice and train young IP lawyers to 152

take advantage of this flourishing area of practice.”

Kumar also observes that International Arbitration has “grown tremendously in Singapore in the past decade” and elaborates on the trend: “Over the years, Singapore has come to be on par with other major arbitral venues such as London, Paris and New York. Because international arbitration can be used anywhere in the world, law firms based in Singapore are not constrained by the rules of court of a particular jurisdiction and can support clients across the globe. Hence, we would expect to see more growth potential for international arbitration practices. We also expect to see greater specialisation, with increased competition among lawyers. The focus will shift to industry and sector specialisation and lawyers will need to adapt.”

10. What are some of the most pertinent issues in both your areas of practice?

Benjamin declines to name pertinent issues and instead shares that the nature of technology law is that “technology is evolving at a breakneck speed and it is difficult for the law to keep up with emerging technology” and notes that in his opinion, this is one of the most challenging aspects about technology law. This is due to the difficulty in predicting or anticipating technology innovation. Benjamin names a few examples: “New innovations such as cloud computing, big data, content sharing, social media and mobile apps have appeared in recent years, and also bring with them a whole new set of legal issues and challenges. Take cloud computing for example cloud computing, by its design, transcends national borders, it complicates compliance with the various flavours of data protection legislation and ensuring the security of the data that is placed in the cloud. Therefore it is not only important for technology lawyers to keep abreast with the latest technological developments, but also be able to think out of the box and to apply traditional legal principles to technology issues (which may not be an easy task sometimes).”

In the area of international arbitration, Kumar cites the arbitral process, enforceability of arbitral awards and the costs of arbitration as some of the most pertinent issues. He elaborates: “There are a number of things to consider about the arbitral process, such as the institution, the seat, and the appointment of arbitrators, etc. For instance, will the arbitration be conducted under ICC, SIAC or HKIAC rules? Should we select London, Singapore, Hong Kong or another venue as the seat? How ‘arbitration friendly’ is that seat? And whom do we appoint as an arbitrator: a legal expert such as a QC, or a technical expert such as an engineer? These are key issues that should be considered when drafting the arbitration clause of the underlying agreement, but are often overlooked until a dispute arises. Nevertheless, these considerations are integral to our practice as our work revolves around the arbitral process and we are there to help clients make the right choices.

Most importantly, one has to keep in mind the enforceability of the award. There is always the question of whether a favourable arbitral award may be enforced against the losing party. This therefore calls for comprehensive knowledge of the various legal systems, which helps you assess whether an arbitral award is likely to be enforced or challenged in a particular jurisdiction.

The long-term strategy adopted in handling a dispute should properly take into account how the end result may reasonably and successfully be achieved.

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Furthermore, the cost of arbitration remains a huge consideration when it comes to the use of this form of dispute resolution. Over the years, arbitration costs have escalated. However, we are now seeing the major institutions establishing rules and procedures for expedited arbitrations and emergency relief, which will hopefully manage the escalation of costs.”

11. Finally, what do you believe are the most important traits a lawyer working in your respective fields should possess?

Benjamin attaches importance to “a curious mind” and an awareness of “the latest developments in technology and the legal issues that arise as a result of such technological developments”.

Additionally, he emphasises the ability to think out of the box as “traditional legal principles may not apply to technological issues”, sharing that as technology lawyers, “we are making law along the way and should not be afraid to apply the law creatively to new situations”.

Kumar believes that there are a few essential traits that “enable your client to entrust you with their most pressing matters”, namely integrity, responsibility and sincerity. He elaborates that: “An international arbitration lawyer should also adopt a global outlook, given the increasingly cross-border nature of disputes nowadays. Equally important is the ability to understand the various legal systems involved and knowing how to make such differences work for your clients.

I’d also add that in the international arbitration space, the ability to think beyond established convention will serve you very well in tackling difficult matters and helping your clients achieve successful outcomes.”

Singapore Legal Service

A Career with a Difference

A UNIQUE CAREER The breadth and scope of experience that is available to a Legal Service Officer (“LSO”) is unsurpassed. LSOs are provided numerous opportunities and exposure to a broad spectrum of challenging and interesting work that is not available elsewhere.

LSOs may serve as a Deputy Public Prosecutor or as a State Counsel in the AGC. LSOs may be also appointed a District Judge, Magistrate, Coroner or Registrar at the State Courts, the Family Justice Courts or the Supreme Court; or as Directors & Heads of Legal Service departments; or as a Legal Counsel in Ministry HQs, departments and the Registries. In addition, LSOs may be seconded to specific statutory boards to undertake legal work.

PUBLIC SERVICE You will, as an LSO, have a noble and fulfilling legal career that will make a significant difference to our society. You will serve and protect the interests of the public and the nation. You will directly participate in the administration of justice and uphold the rule of law in Singapore.

FORMAL TRAINING Scholarships are awarded annually for LSOs to study for a Master of Laws at prestigious Law Schools. LSOs may also be granted scholarships/training awards to undertake leadership and executive/development programmes at premier business schools.

REQUIREMENTS & APPLICATIONS Applicants who have successfully completed at least their second year are encouraged to apply for possible appointment as an LSO. Undergraduates who are selected during the interview will be offered conditional appointment. The confirmation is subject to their being awarded at least a Class 2.1. Fresh graduates (with at least a Class 2.1) are also strongly encouraged to apply for possible appointment as an LSO. Recruitment interviews in the Legal Service for possible appointment as an LSO of those who have graduated are conducted on an on-going basis. Please visit us at www.lsc.gov.sg for more information on the available career & internship opportunities.

Image: Wikimedia Commons

Singapore’s maritime industry accounts for an estimated seven per cent of the Republic’s gross domestic product, and has long been one of the central pillars of her economic growth. True to form in constantly striving for industry excellence on a global level, Singapore was named by Menon Business Economics as the top maritime capital in 2015, shouldering ahead of cities traditionally renowned for all-rounded maritime excellence.

The report was based on the strength of each city’s performance across five categories: (1) shipping, (2) maritime finance and law, (3) port and logistics, (4) technology, (5) attractiveness and competitiveness. While Singapore has performed consistently well across the board, legal practitioners would be particularly alert to the category of ship finance and law, where we fall behind London, Oslo and New York, indicating that we have some work cut out for us as we move to strengthen our legal infrastructure, and marine insurance and finance services.

On top of striving to develop our financial and legal services in the shipping sector, gender representation in the maritime industry could also be improved. It is a stereotype that the maritime industry is a male dominated one, especially in the shipping, logistics and commercial sub-sectors. This has been 155

recognised by the International Maritime Organisation, which has increasingly in recent years actively championed for equal gender representation in the shipping industry through its global outreach programme, ‘Integration of Women in the Maritime Sector’. However, as long as key players in the maritime industry continue to embrace the perception that shipping is a man’s world, it will take some time before the proportion of women choosing maritime as a viable career option increases to a satisfactory level; shipping law is by no means exempt from this trend. Shipping law is a particularly interesting area of practice as it is intimately linked to the technical and commercial workings of the industry itself. It is thus not uncommon, but even necessary for shipping lawyers to be comfortable with not only clambering aboard a vessel when an accident occurs, but also to communicate effectively with a myriad of people working in the maritime industry, ranging from the ship-owner in his office to the foreign chief engineer in the engine room of a supertanker.

Given that a large number of maritime professionals, especially at senior levels, are men, it is not surprising that gender bias extends to the practice of maritime law. That said, the stereotype remains to be challenged, and the first step to breaking the stereotype would be to first commit unequivocally to the belief that maritime is a professional world, and professionalism knows no gender.

s call

By Natalynn Ong In this feature, we speak to Ms. Juliana Yap, a partner at Rajah & Tann (Singapore) who heads the Ship Finance practice group, to find out more about maritime law from a female perspective.

Here’s what she has to say.

1. Maritime law has a reputation for being niche and technical. At the start of your illustrious career, was it a conscious decision to specialise in this practice area? What made you decide to specialise in maritime law?

3. What are some challenges of practicing shipping law? Do you think these challenges are specific to the practice of maritime law, or can they be said to be the same for the practice of law in general?

When I first started practice, I don’t think there were many specialist practitioners in any particular area and certainly not many pure maritime lawyers in Singapore. Today, we see a good number of lawyers who not only specialise in maritime law but have sub-specialties such as “wet” or “dry” work, “contentious” or “non-contentious” work.

The legal landscape in Singapore has changed tremendously in the last 10 to 15 years. Today, it is a playing field not just for Singapore lawyers but also for lawyers from all over the world.

One of the main challenges in the practice of law is competition for work. Whilst not unique to shipping, given the international nature of shipping work, this challenge is felt to a greater extent in the shipping practice than certain other areas of law.

I did not give much thought to any specialisation when I starting practice but happened to apply to and was accepted into a local boutique shipping law firm for my pupillage. I found the work interesting and stuck with it. So you could say it was conscious decision on my part to specialise in shipping but only after I had gotten a taste of it and found it something that I would enjoy and find satisfaction in doing.

2. Could you walk us through an average day in your life?

My average workday starts with an obligatory cup of coffee. I then run through emails and respond to urgent emails. The rest of the day unfolds with more email communications, reviewing and drafting documents, conference calls and meetings.

The young lawyers of our generation are internet savvy, are much more in tune with the world around them than their counterparts from years before and have a lot of mobility. They know the options that are available to them and are not afraid to take them. The corollary to that is it has become increasingly challenging keeping our young lawyers focused and to stay in the field. A first class degree can never be a substitute for experience. As they say, practise makes perfect. Unfortunately, many bright young lawyers don’t stay on long enough to realise their full potential in practice.

Another challenge is that shipping work is very much driven by the world economy. This means that on top of keeping up with legal developments, a shipping lawyer must constantly stay 156

abreast with the market in order to stay relevant to her clients.

4. What are the key moments in your experience practicing shipping law? Is there a particular encounter that has left a lasting impact on you?

Singapore is one of the world’s major shipping hubs. 80 per cent or more of global trade is carried out by ships. To specialise in shipping here is to be in the forefront of the industry. Isn’t that exciting? I enjoy the great sense of a global connectedness in shipping and the quick pace of practice.

I remember the first time I arrested a ship. I had to climb on board a ship and make my way to the wheelhouse to serve the warrant of arrest. I had my high-heeled shoes on and a handbag in tow. It was my own little way of making a statement for women lawyers in shipping! I recount this fondly but admit to the foolhardiness of youth. So I do hasten to add a warning to the readers – be safe; wear sneakers instead and keep your hands free to hang on to dear life.

5. Do you find it necessary to have a working knowledge of more than one jurisdiction’s laws and regulations considering that shipping and trade may often involve parties from different jurisdictions? What would you say are the most important hard and soft skills to possess as a shipping lawyer?

It would definitely be an advantage to have a working knowledge of the laws of more than one jurisdiction. Having said that, I think that it is no great handicap if you do not have such working knowledge at the start of your career. Many things in practice are learned along the way and this could be one of those things.

Hard skills – a law degree. Soft skills – appreciating the business of shipping and being able to steer parties towards solutions that provide maximum satisfaction to your client whilst at the same time setting the stage (or at least not tearing it down) for parties to transact again in the future.

6. What is your experience of being a woman practising shipping law? Do you think this is especially heightened in shipping law, or an extension of general challenges women may face in practicing law?

The refrain “women lawyers!” is quite probably as often huffed as “women drivers!”. It does not always hit the mark and I know many really good women lawyers and drivers. I don’t want to over-emphasise the obstacles faced by women lawyers in shipping but to dismiss it at any level would be a disservice to the profession. However, I do think that a person’s attributes as an individual rather than as a man or a woman are the stronger determining factor in whether he or she succeeds in her chosen field.

7. Do you think gender bias has affected the proportion of women entering into shipping law over the last 10 years?

Gender bias is not unique to the practice of shipping law but this has not stopped many women lawyers from entering into this field. Based on anecdotal evidence, I would say that the number of women entering into shipping law from year to year is satisfactory. The number of those who stay on is less so.

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8. How have you seen shipping law, or even the maritime industry itself change in the last 10 years? What do you see in its future, especially in Singapore and the Asia Pacific region?

Each decade brings new challenges to the shipping industry. In the last 10 years, we have seen laws and regulations being developed and introduced which deal with safety and security due to the threats of terrorism and piracy in the high seas, address environmental concerns by setting measures for energy efficiency and reduce greenhouse gas emissions from international shipping, safeguard the welfare of seamen, etc. Laws have also changed to keep up with the way people do business in shipping, for example, the use of electronic bills of lading.

Legal services are an essential part of a thriving shipping industry. The last 10 years has seen Singapore develop into an increasingly important centre for international arbitration. Singapore is now included as an arbitration venue along with London and New York in standard dispute resolution clauses in BIMCO (The Baltic and International Maritime Council) documents which are widely used in the shipping industry. This recognises the importance of Asia as one of the world’s shipping regions and Singapore’s value in providing an essential service.

The Singapore International Commercial Court was launched this year and this further underscores Singapore as a destination for international commercial disputes. I think that Singapore, with its efficient judicial system, talented pool of experienced lawyers and business friendly environment will continue to be a natural centre for shipping professionals and legal services.

9. What would your advice be for law students aspiring to specialise in shipping law? More importantly, do you have any special advice for aspiring female shipping lawyers?

For the law student aspiring to specialise in shipping, my advice would be to learn around your school’s academic syllabus for shipping as much you do the syllabus itself. Shipping law does not exist in a vacuum but in a very dynamic and fascinating industry. Gain as much knowledge as you can about the world of shipping; learn about the different types of ships that move in the oceans, the adventures of the men and women who work the seagoing vessels, the business of shipping and the “wheeling and dealing” involved in financing the industry. This will inspire you to excel.

For the aspiring female shipping lawyer, be dogged in your pursuit, stay the course and don’t let anyone put you off practicing in the area of your choice just because you are a woman.

the road less travelled: training in hong kong

By Michelle Kang With some UK Singaporean law students venturing to another Asian Dragon to begin their careers, Lex Loci explores the less trodden path of training to be a Hong Kong solicitor.

Image: Flickr CC @ eGuide Travel

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With some UK Singaporean law students venturing to another Asian Dragon to begin their careers, Lex Loci explores the less trodden path of training to be a Hong Kong solicitor.

While most Singaporean law students would return home or remain in the UK upon completion of their legal studies, a small handful have been going down a less travelled alternative path: that of working and training in Hong Kong, another Asian financial powerhouse. Lex Loci speaks to Ms. Priscilla Kam, Graduate Recruitment Officer at Freshfields Bruckhaus Deringer Hong Kong, to get a better idea of the overall career trajectory of a Hong Kong trainee and learn more about the recruitment process.

1. We note that the training and qualification process in Hong Kong is quite different compared to Singapore’s. Would you mind telling us what a Hong Kong trainee at Freshfields can expect in terms of: a. Pre-training contract steps for a UK law student There are three main steps involved: First, the student must attain a qualifying law degree (ie an LL.B or J.D) from universities in Hong Kong, England, Australia etc.

Second, the student must ensure that he completes all the Conversion Examinations (http://www.pcea.com.hk/). There are a total of 8 papers, and the exams are organized biannually in Hong Kong each January and June. Students may take any number of exams at any point of their legal studies, and there is no limit on the number of attempts.

Third, the student must apply and be accepted to the Postgraduate Certificate in Laws (PCLL), which is a professional legal qualification programme. This is offered at three local universities – Hong Kong University, Chinese University of Hong Kong, and City University of Hong Kong, and can be undertaken on a full-time or part-time basis. Admission is competitive and students are generally required to achieve a Second Upper or better. b. The training contract itself The training contract will last for 2 years. At Freshfields, trainees may rotate seats every 3 months, spending time in up to 6 practice groups. For the Hong Kong office, we require trainees to spend 6 months in our Corporate practice group, and 3 months each in Disputes Resolution and Finance. Trainees may also elect to be seated in our Intellectual Property and Information Technology or Anti-Competition and Trust practice groups. We ask trainees to indicate their preferences in advance, and do our best to accommodate them.

Freshfields Hong Kong also offers a unique opportunity in that all trainees are guaranteed two secondments – one to London which lasts for 6 months, and one to either Shanghai or Beijing for 3 months. c. Qualifying into a seat and trainee retention rates In June of a trainee’s second year, we will consult him on his seat preference post-qualification, and again, we try to accommodate our trainees wherever possible.

At Freshfields Hong Kong, we usually attain a 100% trainee retention rate. Trainees are a valuable but expensive investment for us; we generally aspire for all our trainees to remain with us as associates upon qualification.

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d. Post-qualification There are opportunities to be seconded to clients, depending on the availability of suitable supervisors. Although client secondment is available to trainees as well, it generally more likely to take place after your qualification.

In terms of inter-office transfers, we have seen some transfers and secondments to Freshfields’ Singapore office. This depends on business need, although we also take interest into account.

Transfers to London or China are also common. e. Support from the firm and other perks We sponsor PCLL course fees for all trainees. In addition, we offer overseas graduates a maintenance grant during PCLL, as well as financial reimbursement for Conversion exam fees.

Trainees are also sponsored to attend language classes if need be.

We see our future trainees a part of the firm even prior to the commencement of their training contract – trainees are invited to join our spring dinner, Christmas party, and even our dragon boat and football teams. Trainees also help out in graduate recruitment events, such as the UK law fairs and open house days.

Upon joining the firm, trainees undergo a series of on-boarding training. Trainees also undertake training in house, covering both technical and soft skills. Lunch seminars with esteemed speakers are organized as well. Each trainee is also allocated a principal under Law Society regulations as well as a buddy, who is likely to be either a second year trainee or a newly-qualified associate. Both the principal and the buddy are there to guide the trainee, providing advice and support.

2. Could you take us through the recruitment process at Freshfields please? (e.g. deadlines, interviews with HR/ partners, competency tests) Whilst it is not compulsory for students to complete an internship before applying for a training contract, we do recommend they do if possible. The aim of the internship is to give students an opportunity to experience working at Freshfields so that they can make an informed decision regarding their training contract. We offer training contracts two years in advance, and thus, applicants should generally be in their penultimate year.

Applications for our summer internship programmes open in October and close in January. In addition, we also offer a winter internship programme aimed at Australian law students. In general, we receive around 300-500 applications each year, and look to recruit around 30 interns, with around 20 places for the summer programme.

There are three stages; first, applicants complete an online application form, which includes a personal statement and information regarding an applicant’s academic transcripts and CV. This is then followed by SHL competency tests in verbal, numerical and logical reasoning. We look at the overall picture across all three tests in determining whether an applicant is suitable. Finally, the applicant will be invited to an interview, which is conducted jointly by Human Resources and a Partner.

Applicants who successfully pass through all three stages will be offered a place on our summer internship programme, and asked to indicate a preference for either the June or July scheme.

Interns who do not have permission to work in Hong Kong will receive assistance in applying for a training visa. We offer competitive remuneration and interns who are not resident in Hong Kong also receive a cash allowance.

We generally seek to review an application within 4 weeks of submission, and we make offers on a rolling basis. As such, we encourage students to apply early.

3. What would you be looking for in a potential trainee? In particular, is fluency in Cantonese necessary?

We have a strong preference for bilingual candidates who demonstrate fluency in both English and Mandarin Chinese.

Although we do not require applicants to attain native-level proficiency in Chinese, a basic level of fluency is required due to the nature of our work, and it is desirable that applicants demonstrate a willingness to brush up and learn. If necessary, we also sponsor Chinese classes for less fluent trainees subsequently.

Fluency in Cantonese is not a necessity, and is not a factor in assessing potential trainees. However, it is generally useful for living and working in Hong Kong.

In terms of academics, we usually expect a potential trainee to attain a Second Upper standard, although we take into account extenuating circumstances. We also like to see extra-curricular activities, such as pro bono work, committee positions, and work experience, particularly in the legal industry; we are particularly interested in seeing what an applicant has learnt from such experiences, as well as how these skills are transferred to suitability for our internship programme.

4. From our understanding, internships play a central role in the graduate recruitment process. In contrast, they play a smaller role in Singapore; most are un-assessed. a. What can potential trainees expect during an internship Our internships last 4 weeks. Prior to the scheme, interns are asked to indicate any seat preferences, and are allocated to a single practice group. As 4 weeks is a relatively short duration, we feel that having interns stay with the same practice group throughout is preferable. Each intern is also allocated a trainee buddy within the same practice group.

to allow students to compare competing offers in a fair basis. b. Is there any specific advice you would give to vacation schemers?

In general, interns should behave in a professional manner.

While we do not expect interns to demonstrate a high level of technical work or skill, interns should be driven, organised, and demonstrate a good sense of analytical skill and commercial awareness. They should also have a positive attitude to learning and be good team players who are pro-active in asking for work and helping others.

5. Any final words of advice to those looking for a training contract in Hong Kong? Students who are potentially considering a career in Hong Kong should try to get to know us better by attending the law fairs, open houses and firm presentations where possible. Whilst the Magic Circle firms seem similar, people and culture are a key differentiator. Our internship programmes allow us to assess whether an applicant would be a good fit for us, but they are also an opportunity for students to see if they feel comfortable with the firm too. In that respect, interns should definitely talk to people and attend networking sessions to get a better feel of the firm.

When reviewing applications for our internship programme, the personal statement is extremely important. With a word limit of only 850, every word must count. Applicants should also focus on showcasing themselves and why they would be a good fit for Freshfields and a legal career, rather than concentrate on information about the firm. Thorough proofreading is essential, and typing errors or mistakes are frowned upon. Since applications are reviewed on a rolling basis, students should apply early.

During the first week, interns are introduced to the firm through various presentations and on-boarding training. Subsequently, they also undertake training in both technical and soft skills, such as a pitch exercise and negotiation workshop. Social events are also organized, including welcome drinks and lunch, and a volunteer day at Crossroads, a relief agency that ships goods donated by Hong Kong residents to marginalized populations worldwide and our long-term charity partner. Interns are also encouraged to participate in our regular firm-wide social events, which include office drinks, ice cream day, and pizza night.

Throughout the internship, interns undertake work in their practice groups, and also concurrently undergo a variety of assessments. These include conducting legal research and writing a memorandum based on a hypothetical scenario, which varies with each practice group, a negotiation exercise, language assessments in both English and Chinese, SHL verification tests, and an interview with two partners and Human Resource. This year, we have also introduced a pitch exercise The pitch exercise will take the form of a team presentation, with partners and marketing and business development staff acting as clients. We also ask interns to indicate who they have worked with towards the end of the internship, and these individuals will be invited to comment on the internâ&#x20AC;&#x2122;s work. At the end of the internship, interns receive feedback on the assessments as well as their work.

We assess all our interns holistically, and will make approximately 8 â&#x20AC;&#x201C; 10 training contract offers a year from a pool of around 30 interns. Under the current Code of Conduct, it is recommended by the Law Society that offers be made no earlier than 1 August 160

RETHINKING THE GROVES OF ACADEMIA

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Image: Elgar Blog

By Esther Lim Thinking about the beginnings of higher education brings us inevitably to Plato, who founded the earliest known institution of higher learning in Western civilisation, the Academy. The word “academia”, from the ancient Greek, akademeia,1 derives from the Athenian hero Akademos. His estate, a small olive plantation named Akademia, which was sacred to Athena, the goddess of wisdom, was where Plato conversed with his followers and developed his theories. So great was the Academy’s influence and reputation as a gathering place for intellectuals that it remained in operation for nine hundred years after Plato’s death.2 The universities of today bear little resemblance to the original sacred grove of olive trees that Plato made famous: in Plato’s day, there was unlikely to have been a faculty of “professional staff ” separate from the students, or even a set curriculum for teaching.3 But what similarities do modern academics bear to Plato and his associates? Plato worked closely with his students, posing to them problems that were to be studied and solved.4 But more than this, Plato’s work had a major impact on society, laying the groundwork for Western philosophy and science for many years to come. Today, academics continue to take on two important roles: firstly, the educating of students, and secondly, researching and generating intellectual content. Yet, despite the illustrious beginnings of the profession, there is a common perception that academics live in “ivory towers”, are out of touch from the realities of day-to-day life and fail to make an impact on the “real world”. However, what few realize is that from the education and research roles of academics comes an important third role: to contribute positively to society, be it through public education, commenting and evaluating the latest developments in the sector, or by giving suggestions and shaping policy.

As experts in their field, academics provide an intelligent, substantiated perspective on the best way for society to progress that takes into account the broader, socio-political, cultural and commercial implications. This is often the case in the United Kingdom – for example, Professor Rick Rawlings is currently Legal Adviser to the House of Lords Constitution Committee.

In the United States, Michael Sandel is arguably “the most prominent college professor in America” due to this widely popular web-series, Justice with Michael Sandel, which aims to educate the public about issues of legal and political philosophy by relating them to the most important issues of our time, such as immigration, affirmative action, and the role of religion in politics. There is thus a need for academics to apply their skills in educating, communicating and recommending beyond university teaching and writing and into the larger society.

On the topic of the role of academia, Professor Michael Hor, the current Dean of the University of Hong Kong’s (HKU) Faculty of Law, is well positioned to share his views. He studied in three different common law jurisdictions, completing his LL.B in the National University of Singapore (NUS), reading the prestigious BCL at Oxford University and an LLM at the University of Chicago. He then worked as a law professor at NUS, teaching, researching and publishing extensively on criminal law and procedure and the law of evidence, before his present appointment as Dean of HKU. He has also recently joined boutique litigation firm Peter Low LLC, which regularly handles high-profile public interest cases, as a consultant. In this feature, we speak to him about his personal experiences as law professor and Dean, and how academia in Singapore differs 1 “Academy, (n)”, Online Etymology Dictionary, http://www.etymonline.com/index.php?term=academy&allowed_in_frame=0, accessed 6 July 2014 2 Thomas R. Martin, An Overview of Classical Greek History from Mycenae to Alexander (Perseus Digital Library) 3 Ian Mueller, “The Cambridge Companion to Plato” (first published 1992, Cambridge University Press 2006) 4 Ibid.

from other jurisdictions.

1. You worked as a government legal officer for four years before entering academia. What inspired you to make the switch? Did you face any challenges when transitioning to academia?

MH: Three and a few months, actually. Most of the time I was with the Official Assignee and Public Trustee’s Office doing insolvencies and administration of small estates. I was a Magistrate for a few months and managed to hear a handful of trials. I knew very early on in law school that I was “academically inclined”. While most of my classmates revelled in learning what the law was and how it applied in practice, I was more drawn to the history, social policies and cultural context of law. It was not so much the law in itself which interested me but what the law showed me about what our society values and what its priorities are. I had no problems at all with the transition and have never for a moment contemplated what it would have been if I had not embarked on an academic career 2. How did your background in practice influence your academic work?

MH: Immensely. My years as a Government Legal Officer was crucial to the way I would subsequently teach and research. It gave me a set of experiences which I could not have acquired if I had entered academia directly after law school. I had to deal with other government officials, Judges, lawyers, all kinds of other professionals, and of course, members of the public. In a sentence, it taught me that law is not about an idealized, selfcontained abstraction, but about finding solutions to real life problems encountered by flesh and blood people. Theorising and intellectualizing should never be an end in itself, but become meaningful only if it had the potential of aiding the resolution of potential disputes.

3. Educating future members of the profession is one of the most important roles of academics. As a Professor of Law in the National University of Singapore (NUS), you taught many batches of students and were a part of the Faculty Curriculum Committee. How would you describe your teaching style and was this inspired by any of your former teachers? What did you most enjoy about teaching future lawyers?

MH: I don’t think I had a single, unchanging pedagogy. As I became exposed to different methodologies, my own style gradually evolved. I considered all my former teachers as a buffet spread from which I could pick and choose different aspects of teaching to adapt and graft onto my own style. I give three examples. From Professor Geoffrey Stone of the University of Chicago, where I did an LLM, I learnt how to teach in the “Socratic” style. Many attempt it, but few succeed – and Professor Stone did, marvellously, with the correct combination of imparting information and asking questions. Also at the U of C was Professor Cass Sunstein who simply thought through a legal problem aloud in class – this enabled students to learn how that dazzling mind operated. It was a classic case of teaching by example. The third is from Oxford where I did a BCL. Oneon-one tutorials with Professor Adrian Zuckerman were, in a word, terrifying – because of his intensity and erudition. Yet he had the remarkable ability to cut through all the fog and fiction which inhabits much of law. I learnt how to distil the essence, to recognize exactly what was at stake.

My fundamental assumption is that law students in institutions like NUS or HKU are remarkably bright and capable people, and the essential function of a teacher is to help push them up a notch higher. This would involve teaching a little “above” what they are comfortable with. Unfortunately, most student evaluations 162

are made as soon as the course is over. I am afraid this kind of pedagogy does not normally fare well in these feedback exercises.

But I have had more than a few students who tell me some years after leaving law school that they only appreciated my teaching style long after they had left the Faculty. Nonetheless I had to do what I felt to be right.

4. How does your present role as Dean of Hong Kong University differ from your role as a law professor?

MH: I think it is essential to what I do now that I was a “rank and file” law professor. It helps to keep the administrative focus on the right things – student education and welfare and staff development and empowerment. But the day-to-day things that I do now are almost entirely different from what I used to do before. The average law professor spends his or her time on students (teaching, thesis supervision), research, and the occasional Faculty or University committee. Now, although I cling on a bit of teaching and try to snatch moments here and there to do some reading and writing, the lion’s share of my time is management – finances, public relations, personnel, and the like. After so many years as a law teacher, I have to admit that what I do now is certainly more exciting and has been a great learning experience.

5. How does the academic scene in Hong Kong differ from that of Singapore?

MH: From a strictly legal perspective, it is not that much different. Much of the academic activity is very similar. But divergences lie under the surface. I give two examples. The first is the attachment to English law. Hong Kong tracks English legal developments much more closely than Singapore. Perhaps that is only to be expected – Singapore is celebrating its 50th year of independence, Hong Kong SAR was established about 18 years ago. The second is the China context. Although it is legally still very much “one country two systems”, the significance of (Mainland) Chinese legal developments to Hong Kong cannot be over-estimated. HKU currently maintains what is perhaps the largest collection of (Mainland) Chinese scholars outside of China and that is not by accident. There is no comparable “other” jurisdiction with respect to Singapore.

6. What was it like taking up the role as one of the most prominent legal intellectuals in Hong Kong in the wake of the Occupy Central movement? What are your priorities as Dean and how have they changed since you’ve taken up office?

MH: No, I cannot claim to be a prominent legal intellectual in Hong Kong. My predecessor in office and two or three other of my colleagues can deservingly be so described. In a mature and nuanced jurisdiction like Hong Kong, I would not consider anyone who has not had a good number of years in Hong Kong under his or her belt to be a leader of anything here. The Occupy, Umbrella or Political Reform movement has created unprecedented challenges. The significantly different conceptions of democracy (I use the word in a simplistic freeelection sense) between Hong Kong and Mainland China seems to have created a rift in Hong Kong society between those who would “pocket first” the modest reform proposals approved by Beijing and trust that there will be gradual progression towards more and more democracy, and those who feel that Beijing is not serious about progressive democratization for Hong Kong and that a stand for greater reform has to made here and now.

Understandably, HKU and especially the Law Faculty, with its high concentration of the intelligentsia in Hong Kong, is caught in the cross-currents. The challenge for the University and the Law School is to preserve and protect its traditional liberal atmosphere so that as many perspectives and views as possible can be aired and debated, and hopefully a conciliation can be 163

found.

7. Academics in Singapore have taken up roles outside of pure legal study; for instance, in the prominent case of Tan Eng Hong v. Attorney General, Professor Jack Lee from the Singapore Management University’s School of Law and Assistant Professor Lynette Chua from the Law Faculty, National University of Singapore were part of lead Counsel of M Ravi’s legal team and were allowed to sit in on the hearing in chambers. Do legal academics in Singapore play a big enough role in society, both by voicing opinions and offering expert advice on controversial issues and by informing the public at large?

MH: This needs to be seen in a historical context. When the PAP took over the government of Singapore, it felt that the way for Singapore to succeed was to move as one nation and in order to achieve that to eliminate serious public dissention and contest.

Not just the Universities, but all sectors of society had to fall in line in order to contribute constructively to nation building, economically or otherwise. With so many years of stability and economic progress, and with changes in values and attitudes following upon generational changes, the PAP Government has relaxed this position significantly in recent years. The “space” – for academics and others – has become wider. I certainly think that it is incumbent on the legal academia – faculty and students - to lead the charge in seizing this space. As you have pointed out, they are already emerging, and this is a very good development.

The fear in some quarters has been that greater freedom will lead to greater irresponsibility in the expression of views and advocacy and unnecessary noise which might distract public discourse. That is, of course, always risk, but I am optimistic that Singapore can lead the way in showing that freedom can be exercised responsibly, and that Singapore will be the better for it.

8. You were also a student at NUS law school, and later furthered your law education at University of Oxford and University of Chicago. Did you notice a difference between the roles taken on by your law professors in Singapore as compared to in Oxford and Chicago? How do your observations on the nature of academia when you were a student compare to your experiences now?

MH: To put it bluntly, Singapore academics have been rather more restrained in criticizing laws and government policy.

The reason is historical, and normally described as a trade-off between liberalism and the needs of urgent nation building.

But with a maturing and extremely well-educated society, what the nation needs has changed. The time may well have come for Singapore academia to take its rightful place amongst the great universities of the world. Great universities examine and re-examine assumptions, even fundamental ones, so that when societies or nations decide what it wants to do or be or to value, the decision is properly informed. Perhaps this was something Singapore could not afford or did not have the luxury of time to do, but is probably no longer the case.

9. Singapore’s universities have been criticized for hiring too few Singaporean academics. Indranee Rajah, Senior Minister of State for Education, has pointed out in Parliament that Singaporeans made up one in four (25%) faculty members on the tenure-track in both NUS and Nanyang Technological University (NTU); Singapore Management University’s (SMU) figure is one in six (16.6%); and Singapore University of Technology and Design’s (SUTD) figure is one in three (33.3%), making Singaporean faculty members are a minority in Singapore’s universities. Do you see this as a problem in the Law Faculties in Singapore? How might we encourage Singaporean law students to pursue academia locally?

MH: I think that the best way to pose the question is to ask whether the Academic institutions in Singapore are able to attract and retain people who are committed to the welfare and development of Singapore. Presumptively, of course, Singaporeans are more likely to have the largest stake in Singapore doing well. But in my many years at NUS I have also come across not a few non-Singaporeans who care deeply for Singapore. In short the metric has got to be more sophisticated and finely tuned than mere nationality. We need to look at the kind of work they do, how they teach, what kind of research they do – are they inspired by what they think is best for Singapore, or in the context of law, what is best for the development of the Singapore legal system and Singapore society in general. If most of what a majority of academics in Singapore are doing work which has little to do with Singapore, then there is a problem.

10. How has a life in academia shaped your world-view?

What advice do you have for those pursuing a career in legal academia?

MH: I think the greatest advantage of being an academic is the relative detachment from the nitty gritty concerns of everyday life. Academics have the luxury – or some would say the duty – to think more deeply and to see things more broadly. An academic life is one which is conducive to appreciating more clearly the things which are really important in work and life – which for me is to be true to myself, to rise above myself for the greater good of those who are affected by what I do, and to have a rollicking good time in the process. I suppose my “advice” or rather wish for those in academia will be along those lines.

From a global platform of more than 2,000 lawyers in more than 30 offices across the world, we help clients overcome legal challenges and meet their business goals every day.

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 attend the vacation scheme are eligible to apply for an English law training contract in Singapore towards the end of the scheme.

In London, we offer two summer vacation schemes, each lasting two weeks. Students who attend the vacation schemes are eligible to apply for a training contract in the London office. We also have a limited number of training contracts for those who do not attend a vacation scheme. Our annual intake of trainees is approximately 20 in London and 2 in Singapore.

For more information or to apply for one of our vacation schemes, please visit www.lw.com. © Copyright 2015 Latham & Watkins. All Rights Reserved.

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Private lawyers,

Image: AWARE

Public Interest?

By Wong Pei Ting Amidst Singaporeâ&#x20AC;&#x2122;s burgeoning commercial and corporate law scenes, private law retains an indispensable role, protecting and advancing public interest. We explore how AWARE utilises the law in exercising this function.

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Set up in 1985, relatively late into the international women’s liberation movement, the Association of Women for Action and Research (AWARE) is Singapore’s foremost gender equality advocacy organisation. Catalysed by a slew of government policies in the 1980’s aimed at persuading graduate Singaporean women to settle down and have children, its membership has burgeoned from four founding members to a full-fledged organisation of 473 as of 2013. Through research into issues which affect women, AWARE seeks to ground its campaign for gender equality on a combination of coherence and cogency.

Founded by women for women, AWARE has worked tirelessly in its cause to affect change in governmental policies and societal attitudes in Singapore.

Beyond being a voice for women in the context of legal, social and political discourse, AWARE also provides support services focusing on issues that affect women most acutely. The Sexual Assault Care Centre (SACC) launched in 2014 provides both legal and therapeutic support to women who have been victims of sexual assault, and is a recognition of the importance of victim-care aspects of criminal justice. With points of intervention aimed both upstream at policy-makers and downstream at women on a grassroots level, AWARE’s comprehensive approach, top-down and bottom-up working in tandem, seeks to foster a society devoid of gender-based barriers, where people – both men and women – are empowered to fulfil their personal aspirations.

Whilst its successes and disappointments weigh in equal measure, what is incontrovertible is the change AWARE has made to lives of women – both individually and collectively. Because the issues AWARE grapple with stand at the cusp at which society and politics spill over into the law, there is a role to play for the legally-trained in pushing for social change. We speak to Jolene Tan, Programmes and Communications Manager at AWARE, about past successes, present challenges and future hopes.

1. What does your work at AWARE involve?

intention to pass the Protection from Harassment Act.

Through our Support Services, which assist women in crisis, as well as our more formal research, AWARE has a unique understanding of the impact that policy has on women’s lives and gender equality. We realise that it’s important to share these perspectives with not only policy-makers but also the public. That’s where I come in - I head our Programmes and Communications department, which engages with traditional and social media, runs community workshops and theatre, and provides training programmes for corporates and schools - making gender equality conversations a part of our everyday lives.

We were also pleased to work closely with the Ministry in developing the Act, offering comments on the draft legislation at various stages. To do this, we drew on our substantial experience in assisting women who face harassment and providing training for employers seeking to create harassment-free environments.

Though the Act continues to have gaps, overall we consider its passage to be a success.

2. AWARE has been an indispensable voice in the advocacy for victims’ rights and welfare. For example, you launched the sexual assault care centre last year. Could you tell us more about this initiative?

The Sexual Assault Care Centre (SACC) is Singapore’s first and only specialised drop-in centre supporting women who have been sexually assaulted, providing safe, free and confidential services to meet their needs. SACC offers a drop-in centre with an on-site social worker, a helpline (6779 0282), email support (sacc@aware.org.sg), legal information, therapeutic counselling and ‘befriender’ services - where a trained befriender accompanies clients to the police station, hospital or court. In our experience, the presence of a truly supportive service, which really listens to and assists clients rather than judging them, can play a significant positive role in their recovery.

3. AWARE is and has been involved in several efforts towards law reform in Singapore. Could you tell us a bit more about them, and how AWARE has been involved?

AWARE has long advocated for greater protection against sexual harassment. Drawing on our 2008 survey on workplace sexual harassment, and our 2012 study of anti-harassment measures, in 2013 we ran a campaign named Sexual Harassment OUT (SHOUT) for greater protection against sexual harassment. So we were very pleased when the Ministry of Law announced its

We were also successful in calling for statutory paternity leave (though we would like to see this lengthened from the present one week) and in securing the repeal of Section 157(d) of the Evidence Act in 2011 (an archaic law that made it possible to discredit a sexual assault victim through her sexual history).

Going back a decade, previously we were also involved in abolishing the limit placed on the proportion of medical students who could be women, and in reforming civil servants’ benefits so that they were equal, regardless of gender.

4. Which do you perceive to be of the greatest priority, and why?

There are so many components to gender equality that it is hard to name just one! But one very key issue is encouraging society to rethink the way that we approach domestic labour, including caregiving - childcare, eldercare and care of disabled people.

For too long, this has not really been seen as ‘real work’, because it is considered ‘women’s work’, which should be provided by female family members without compensation. This has major effects on women’s welfare. Women are expected to leave paid employment and take primary responsibility for childcare, with negative effects for their long-term financial security and well-being. For instance, CPF is being reformed, but what of the fact that unpaid caregivers have no opportunity to accumulate CPF at all?

Singapore has tended to sidestep the conversation about the increased role that men should play at home. We would need to reform our employment culture and structures to allow work166

life accommodation for everyone. Relying on a gendered division of work where women are expected to provide unpaid (or, in the case of domestic workers, underpaid) labour is neither sustainable nor fair.

5. What do you see as the role of law and lawyers in achieving AWARE’s mission to ‘remove all gender-based barriers’?

Our long-term vision is of a society which respects the human rights of all - where everyone can be included and respected.

The law is critical to giving people guarantees of equality. It can provide protection against violence and harassment, as well as giving redress to victims of discrimination. By setting legal standards, the state also sends a signal to citizens and residents about the status of different groups of people in Singapore. For instance, the marital immunity for rape found in the Penal Code is a saddening indication of the way that women’s role in marriage is perceived by some, and the continuing presence of Section 377A of the Penal Code is often seen as legitimating discrimination against an entire community of Singapore’s residents.

Lawyers can play a valuable role in many ways - by analysing and commenting on the law, pushing for reform, being involved in public interest litigation, and making their services available to marginalised groups who need their help to navigate the legal environment they live in.

6. What are the greatest challenges AWARE faces?

Two major trends stand out. One is the ageing population. If we do not change our gendered societal attitudes toward caregiving, we will find women bearing the brunt of the increased need for eldercare. This year, as part of our annual recommendations for the national Budget, we have urged the government to make long-term investments to build up our currently under-developed caregiving infrastructure, and to adopt an economic approach that recognises the value of caregiving and ensures it is adequately supported.

Second, in some ways, society appears to be becoming polarised on many issues, such as inclusion of LGBT people and diverse families. It is great that more voices are speaking up and making a plurality of views heard, but there seems to be a strain of intolerance toward societal diversity - as evidenced in the call for library books featuring same-sex relationships to be pulped and the censorship of media like Jolin Tsai’s recent song and music video about same-sex marriage. We need to develop a culture of greater peaceable co-existence and inclusion for all.

7. What are AWARE’s big plans for the future?

AWARE was formed in 1985, making 2015 a big year - our 30th birthday is coming! For the next 30 years I expect we will continue building a movement which will bring our ideals of equality and inclusion further into the mainstream. One day perhaps Singapore we will pass a comprehensive anti-discrimination employment law. Or SACC could move from being the only service of its kind, to being a template for services based at police stations and hospitals everywhere. We’re dreaming big.

To become a member of AWARE, visit www.aware.org.sg for details.

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FINDING BALANCE IN A STATE OF UNBALANCE: THE AGE OLD TUSSLE BETWEEN

& Image: Kelly Alexandra Williams

By Natalynn Ong

Left to right: Mr. Terence Teo, Mr. David Chee and family

A lot of ink has been spilt over the work-life (in)balance that is characteristic (or, shall we say, stereotypical) of legal practice. As wide-eyed and bushy tailed law students eager to embark on this chosen career path, we are often regaled with cautionary tales by tired seniors thick in the midst of their practice training programme and junior associates earning their stripes armed with a healthy dose of cynicism. These tales carry a running theme: bid farewell to your personal life as you know it, and more importantly, keep a change of clothes (and clean socks!) in the office.

The tough early years of lawyering is a rite of passage for all aspiring lawyers, and precious few who enter will emerge without scars and sacrifice.

The spotlight on this issue frequently focuses on female lawyers, particularly those who juggle triple identities as wife, mother, and lawyer. In Lex Loci 2014, our esteemed interviewees acknowledged the trend of a higher attrition rate for female lawyers as compared to their male counterparts, attributed in part

to the difficulty of balancing a successful career with family demands.

In this article, we re-direct the spotlight to suss out male perspectives on the notion of work-life balance in the practice of law. It is stating the obvious that male lawyers too, have their concerns in balancing their professional life against personal commitments. They are equally caught up in the constant need to juggle triple duties of being a husband, father, and lawyer.

Here, we speak to Mr. David Chee, Director (Tax & Private Client Services) from Drew & Napier LLC, and Mr. Terence Teo, General Counsel (Asia Pacific) from Edwards Singapore. Their responses are personal and thoughtful. Ultimately, the standard of balance is truly subjective, and whether we achieve a satisfactory state of (in)balance will be determined largely by ourselves and the beliefs we subscribe to. We have no doubt that what David and Terence have to say would serve as wise counsel for all, 168

1. Did you feel prepared for practicing law fresh after graduating from law school?

David: Feeling prepared is not the same as being prepared. The practice of law is very different from the study of law. Having said that, law school did equip me with some basic skills, which I could build on once I started work. E.g., research and analytical skills.

Terence: No. Law school can never adequately prepare you for practice and should not even try. The practice of law is something that needs to be learnt on the job and as a focused professional training course. That being said, I learnt the best lessons on practice in the Bar Rooms of the Supreme Court and the (then) Subordinate Courts. I also learnt on the job that being a successful lawyer means making it pay, which in turn means proper administration and management of a legal practice as a business, something law school can never teach you.

2. How long did it take you to adapt to practicing law? Do you enjoy what you do?

David: It took a while but I think I’m finally at the stage where I am enjoying what I do.

Terence: Including the PLC and pupillage, about 2 years. I thoroughly enjoyed going to court. I also developed a taste for family practice – wills, probate, administration – and enjoyed helping people there too. I truly felt happy when I won cases, and also when I helped people during times of difficulty especially bereavement or preparing for the time after their death.

3. What would you say are the three most satisfying rewards of practicing law?

David: In my view, (i) being able to help my clients, (ii) meeting new people and (iii) being able to mentor the younger members of my team are very satisfying.

5. What is an average day like for you?

David: I’m usually in the office by 9 and I try to leave by 7. The day’s activities typically revolve around doing the existing work and getting new work. So there would be client meetings and presentations, discussing new and ongoing matters with my fellow colleagues, reviewing documents, etc.

Although I try not to bring my work home, the nature of the lawyering is that when you agree to act for a client, your client’s problems become your own, so it is hard not to think about the issues that need to be resolved even when you are not in the office.

I usually make it a point to have lunch or tea with good friends.

It’s always good to intentionally schedule a break from work, especially when such a break lifts your spirits and reminds you that friendship is one of the most valuable things you have in life.

Terence: As a practicing lawyer in a top 5 law firm engaged in litigation work, I was very, very busy. I used to get to the office at 7.30 am and get home only at 10.30 pm, and this was in the days before the MRT was a household word.

I am an in-house counsel now, so my average day is different from that of a practicing lawyer. Moreover, I am working for a European MNC so time loses all meaning. My workday can literally be 24 hours. My primary responsibility is looking after APAC countries, ranging from Korea and Japan to India - an area covering many time zones. Then Europe opens and I start receiving requests from there, providing reports, and attending conference calls. These calls can be fixed for any time from 3 pm all the way to 10 pm to cater for our US colleagues in New York.

Terence: 1. It’s a profession. Something no one else can do unless they have studied the law and qualified.

My 24 hour days start the moment I get into a taxi to the airport.

As regional counsel, I travel on average once a month for up to a week. Arguably when I get back to the hotel I am no longer working, but to me, so long as I am not at home with my wife and children, and I am travelling because of work, I am working.

2. Sharpening the mind; you get to see things from not just one perspective but literally a 360 view.

6. Could you tell us three highlights or milestones of your career to date?

3. Application; law is all about real life and you can see not only the value of planning but also the consequences of failure and learning from those instances for yourself and your own life.

David: I will tell you about highlights. I think the first was graduating from law school. When I was in school we were in the throes of the dot-com boom and I was doing some work for a start up on the side. The thought of taking a break from law school crossed my mind more than once! After that, I went to Canada for a year on an exchange program in the 3rd year and enjoyed my time overseas so much that I didn’t want to come back for my 4th year. I was exploring various ways of staying on and getting a law degree in Canada instead. As you can see, I didn’t succeed.

4. What would you say are the three biggest costs of practicing law?

David: In my view, (i) unpredictability of hours (this is worst when starting out), (ii) long workdays (usually gets better as one gets more senior), and (iii) the stress or the strain of taking on your client’s problems as your own.

Terence: 1. It’s a profession. It can become an obsession that takes over your life.

2. Your mind becomes too sharp for everyday use and you question everything, with the result that you irritate people. We lawyers need to learn to switch off, but its not easy, and I haven’t learnt it yet.

3. Seeing how other people fail makes you hesitate about taking risk. The trick is to learn from other’s mistakes but not to allow 169

the experience to hold you back.

The second was deciding to carry on as a lawyer after the first year in practice. After pupilage, I practiced in the area of banking for about a year and didn’t really enjoy the nature of the work, so I quit. I was then deciding what to do and asked a senior lawyer I knew for some advice. He told me that before I turned my back on practising law for good, I should practice in the area of law that most interested me. If that didn’t work out, then I could leave with no regrets. That was great advice and it led me to my current area of practice.

The third was deciding to leave practice after a few years to explore the trust industry. I think having been out in the industry helps me now that I’m back in practice because of my familiarity with the issues and the network of contacts I have built up over the years. I made a decision back then to define myself as a “trust professional” rather than a “trust lawyer”, and that expanded my horizons tremendously.

9. How do you balance work and family life? Do you think you spend enough time with your family, or on your personal hobbies?

Terence: For the first - practice was a milestone and winning several cases was a good boost. I handled the liquidation of a stock exchange brokerage company that was reported in the newspapers. I worked on an interesting case on rent control involving a tenant of the Raffles Hotel, one of the last of these cases; and I handled a couple of road traffic accident cases that were interesting, involving goreng pisang and multi media evidence, very unusual back in the 80s.

The question of balance is a tricky one. It presupposes we know what balance is and what it looks like practically. Maybe the (real) question we should all ask ourselves is how we find fulfillment and meaning in life.

Second, EDB was a great place to work, with much for a lawyer to learn. I was there during the era of Tan Chin Nam and Philip Yeo, two great and inspiring leaders.

Terence: I think that we do spend enough quality time together as a family; we have dinners together every day, and we try to spend some time together on weekends especially during and after church, although the attractions of the computers and smartphones can be difficult to resist. Even when I am travelling, we try to Skype every night, and say our prayers together as a family.

I would like to spend more time on my personal hobbies but I have also noticed that when I do have time I might end up not doing them anyway so it’s not a major issue. I have been able to indulge myself in my hobbies when I travel and I do catch the latest movies on the plane so I don’t feel like I am unable to balance work and personal fun.

Third - my work in Thomson multimedia; helping to manage not only good times like setting up joint ventures in China, but also when we were trying to take care of our fellow employees when we sold off our businesses.

7. What are some of the sacrifices you have had to make over the course of your career? With the benefit of hindsight, would you still have made the same sacrifices that you did?

David: Anytime you make a choice, you close the door on something. I suppose that something you give up could be considered a sacrifice. In that context, in deciding to stay on in this area of work, I will never know where I might now be if I had made the switch to a different field years ago. I find the area of finance and asset management fascinating and if I could go back in time, I don’t think I would have chosen to study law.

Having said that, life has to be lived in the present and with an eye on the future. We strive to do the best in our current circumstances based on the resources and talents given to us. I don’t have any regrets. I am where I’m supposed to be and I’m doing what I’m supposed to do.

Terence: Practice takes a lot of your time, energy and attention, and I am glad I did not have to sacrifice time with the family as I got married late and started a family after I had left practice.

I salute all those lawyers who manage to balance family and a successful career as practicing lawyers.

I don’t think being an in-house counsel has meant a lot of sacrifice; yes, you do spend time away from the family when you are travelling, but it makes the time you do spend all the more precious and not to be wasted. Quality time, not quantity, is the key.

8. What do you think the biggest challenge of your job is?

David: Building and sustaining a viable practice, because at the end of the day a practice is a business. A business needs to be profitable if it is to survive and be of service to others.

Terence: Remaining humble yet remembering that you have specialist skills and knowledge that require you to step up at the right time. It’s all about timing and opportunity.

David: I would like to spend more time with my family and on my hobbies, but as it is I think that I am fortunate enough to have most weeknights and almost all weekends to myself.

In any case, achieving balance (based on your own concept or understanding of what it is and what it entails) requires active / conscious decision-making.

10. What is it like to juggle your triple identity as a father and husband at home, and a lawyer in the workplace? Do these roles come into conflict often, if at all?

David: Any act which requires juggling is not easy. Juggling is required because of competing demands and finite resources (principally, time). Where there is competition, there will be conflict, hence having a mechanism in place to deal with it when it arises is important.

In this regard, I think it is important to realise that in our juggling act, some of the items in the air are rubber balls and others are eggs. Rubber balls, if dropped, will bounce back. Not so for eggs. We need to know what our eggs and rubber balls are. We need wisdom.

Terence: No; work is work. That being said, the stress of work can sometimes intrude and impact and affect the way I behave as father and husband, and vice versa. The best way to resolve them is to avoid them altogether and learn to switch off before you reach home.

11. Are there any rules or guidelines that you set for yourself in compartmentalising your life?

David: I’ve given up a long time back. It was an exercise in futility for me and I suspect it is because this is not possible. Every aspect of our life is intertwined.

Terence: Yes; try not to talk about work at the dinner table, unless you want to share an interesting insight or life lesson arising from work. Talking about work can sometimes make me forget where I am, and I start bringing home the stress of work to the dinner table. That is not acceptable.

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12. How do you disconnect from work? What are your interests outside of work?

David: I have many friends from different walks of life. I try to meet with them as often as I can (usually for coffees and lunches). They provide a welcome break from work and help me centre myself.

Outside of work and family, I spend most of my time in church-related activity, playing tennis and maintaining my reef aquarium.

Terence: My family and my church would be my main areas of interest outside of work. God is a very important part of my life, the very center of it; there was a time when I thought God was in my life when in actual fact He was not, and I learnt it the hard way when I got retrenched and discovered that I had been living a life of delusion about the true place of God in my life. God brings balance and focus and meaning into my life.

My main hobby is scale modeling; I build scale models of aircraft, vehicles, etc. I spend as much time as I can on this, as it is very therapeutic to work with your hands. I normally work best late at night or in the early hours of the morning when everyone else is asleep so that works. I play a lot of strategy computer games, my particular favourite is Company of Heroes. I used to read a lot of books but now they are mostly for reference. I am starting to get back into the habit of reading books for fun though.

13. What’s the best piece of advice you’ve ever been given on the topic of striking a balance between your personal life, and being a lawyer?

David: I’ve not received any advice on this before. But if someone were to ask me for advice on this topic, I would ask - What do you mean by balance? What is balance to you?

When you can answer those questions, things will fall into place.

If definitions (or our understanding of the meanings of terms) are so critical to our analysis and interpretation of legal documents, what more our lives?

Terence: Never place your personal life or yourself or your job at the center of your life. There will be constant conflict. Instead, place God in the center of your life, and everything else will settle into a proper orbit and there will be harmony. Without God, there is no point of balance.

14. What would your advice be to our readers aspiring to be (good) lawyers one day?

David: The question I would ask is – Do you really want to be a lawyer? You are climbing a ladder that is leaning against a wall, so the sooner you determine if the ladder is leaning against the right wall, the better.

For most of you reading this now and at this stage of your lives, this is going to be an exercise of discovery. You simply don’t know enough about yourself or the practice of law to make an informed decision. So give yourself the time and space you need to figure these things out but don’t take too long.

What’s crucial in all of this is to make sure you spend time reflecting as you learn and experience new things. This will speed up the process of self-discovery and self-awareness. If your lad171

der is leaning against the wrong wall, stop climbing. Go find the right wall. You’ll be happier and you’ll make everyone else happier too.

Terence: Be honest and true, not only to your clients but to yourself; always have integrity because trust is the bedrock of being a lawyer, whether in practice or in-house, and is difficult to earn and easy to lose. Do not take yourself too seriously; you cannot fix everything, but you can certainly give it your best shot. Focus on the sin, not the sinner, when trying to find solutions. Above all, be humble; you are who you are and where you are because of God’s graces and blessings.

Image: StudentGuideWebDesign.com

PRO BONO IN SINGAPORE AND ABROAD

By Eugene Tan In Singapore’s hyper-competitive job market, who would think of working for free? Law students today tend to gun for internships and jobs where the big money is perceived to lie. It is thus, understandably, often the case that students direct their attention towards commercial opportunities and feel that pro bono work is but inconsequential to one’s career prospects.

Work undertaken without payment does not seem attractive until one considers the less tangible benefits and the enriching experience that one may derive from pro bono. In this feature, the UKSLSS speaks to Nicolas Patrick from DLA Piper and Josephus Tan from Fortis Law Corporation: two lawyers contributing to society through their pro bono work in very distinct ways. They share with us their experiences, takeaways and views on this less discussed area of the legal industry.

Nicolas heads DLA Piper’s Pro Bono and Corporate Responsibility practice in UK, Europe, Middle East and Asia Pacific. He is also responsible for advising clients in relation to

corporate responsibility and human rights. In his work involving International Human Rights Law, Nicolas’ expertise includes preparing individual communications to the United Nations Human Rights Committee and other United Nations treaty bodies and advising governments on a range of human rights matters. Nicolas also serves on the board of New Perimeter – DLA Piper’s non-profit affiliate, established in 2005 – which delivers large scale, high-impact pro bono projects in developing and post conflict countries. In 2011, for example, he was involved in presenting a report on economic development options for Timor-Leste and facilitated workshops on special economic zones for the staff of a number of Government Ministries.

On the other hand, Josephus Tan is an Associate Director at Fortis Law Corporation, Singapore’s Pro Bono Ambassador and Lead Counsel under the Supreme Court’s Legal Assistance Scheme for Capital Offences. He specialises in criminal defence litigation in Singapore and his range of work in criminal defence extends from petty crimes to capital offences. Josephus is a 172

regular speaker at various pro bono events and schools and has been an iconic figure in Singapore’s pro bono scene.

Drawing on their different professional experience, Nicolas and Josephus share with us their views on why pro bono is especially important today, even outside the corporate social responsibility obligations of firms. We hear from them how law students and young lawyers can benefit from pro bono work while balancing it with their legal careers. Comparing work done locally in Singapore and work done on a larger, international scale, our conversations with these two prominent lawyers highlight the range of pro bono opportunities available to lawyers today.

Today, Singapore does not impose mandatory pro bono hours on practicing lawyers and law firms. However, this approach could stand to evolve soon; the pro bono scene is developing through the arduous work of lawyers such as Josephus, although such characters remain the minority. As our regulatory bodies gain a better understanding of the pro bono landscape in Singapore and moves towards greater progress in this area, it will be helpful to consider the achievements of large international firms such as DLA Piper and different regulatory systems overseas.

NICOLAS PATRICK

city. In about 2003 I started setting up a formal pro bono program for the firm in Australia. I wrote our first pro bono policy and started coordinating pro bono requests and distributing pro bono work to lawyers in the firm. In 2004 I persuaded the firm’s management to let me do pro bono work for 50% of the year and billable work in the litigation team for the other 50%. The following year the pro bono practice had grown so much that I was allowed to stop doing billable work to manage the pro bono practice on a full time basis. We now have 20 lawyers in the pro bono team globally. Some of those lawyers have been recruited into the firm laterally from legal aid providers, national human rights commissions or legal centres, but most have joined the team as trainees or grads and joined the pro bono practice after rotating through the pro bono team as part of the training program.

Before taking on Pro Bono projects full-time, how did you balance professional obligations with Pro Bono work? Could you share with us any difficulty in this area?

Nicolas: I have always taken the view that pro bono work is itself an important professional obligation for all lawyers. We are the guardians of the justice system and we need to constantly strive to ensure that the system is fair and accessible to everyone, not just those who can afford to pay legal fees. I think all lawyers should set aside a small portion of their time for pro bono work.

When I was a commercial litigator I was volunteering one night per week at a Community Legal Centre. Sometimes it was difficult to get away from the office early, sometimes I was tired and wanted to go straight home, but you are motivated by the fact that you can see the real impact that you can have on people’s lives. Ultimately that experience was hugely beneficial to me personally, because I learnt so much through volunteering that I would never have learnt in a large corporate law firm.

Could you provide us with an idea of how a dedicated Pro Bono department in an international firm such as DLA Piper operates? How does it differ from a traditional legal working environment?

Nicolas: As a dedicated pro bono department we have 2 functions. First, we undertake pro bono case work mainly in the area of human rights. We advise governments in fragile nations, UN agencies, NGOs, charities and low income individuals.

Secondly we are responsible for generating pro bono instructions for the rest of the firm. At DLA Piper our goal is to get all of our lawyers doing pro bono work and so we try to generate pro bono opportunities for as many of our lawyers as possible. Last year we undertook more than 202,500 hours of pro bono work globally. This is the equivalent of having 116 lawyers working full time on pro bono for the year. This is a very substantial pro bono practice, it is very busy, at times stressful, but extremely rewarding.

Could you please tell us how you arrived at where you are today, taking on pro bono projects full-time?

Nicolas: I started at the firm as a graduate in the Sydney office in 2001, and I worked initially in the commercial litigation team.

At that time I was doing volunteer work at Redfern Legal Centre, a free legal advice service for low income residents in the inner 173

To what extent is practicing Pro Bono fulltime in a large international firm what you had aspired to do when you were a lawyer fresh out of school?

Nicolas: When I finished studying law I honestly didn’t even know that full-time pro bono roles existed in large law firms - there were only a handful of these roles in Australia back in 2001. My approach to my career has always been to gravitate towards the work I enjoy doing. When I moved into a full-time pro bono role in 2005 people told me it was a bad move and that I would never be a partner and that I should keep doing some commercial litigation, but I made the transition to pro bono because I enjoyed the work and found it more fulfilling.

When I was promoted to partner in 2008 it was pretty unexpected because I wasn’t generating any income for the business, but the pro bono practice was strong and it made a very significant non-financial contribution.

Pro Bono work conducted by DLA Piper takes on a much larger scale than most national firms, and this shows to be the case in practice (for example, DLA’s Piper work done through New Perimeter, involved among other things, in providing advice to post-conflict nations).

Has it always been your interest to deal with human rights matters on such a large scale?

Nicolas: As a global firm we do have a unique approach to pro

bono. We tend to assess unmet legal need on a global scale and divert our resources to places where we can have the greatest impact, even if we don’t have an office in a particular country or location. There is more information on our global pro bono work at www.dlapiperprobono.com and www.newperimeter.org.

JOSEPHUS TAN

While Pro Bono is about giving, what key takeaways would you say lawyers stand to gain from engaging in Pro Bono work?

Nicolas: For our lawyers, working on pro bono matters keeps them connected to their local communities. It provides them with a greater sense of perspective, puts their own problems into perspective, and it can assist them to provide better advice to their commercial clients as well. Sometimes advising an NGO on important social issues helps our lawyers to understand the social impacts of their commercial matters, and they can better identify human rights risks and reputation risks for our commercial clients.

What would you say has been your greatest takeaway from your work?

Nicolas: When I was volunteering at a legal centre one of the key lessons I learnt was that you can’t focus on a client’s legal problems to the exclusion of everything else that may be going on in their lives. For example, a woman might come in to take about getting a protection order placed on her violent husband.

We could help to make an application to the court, but we also had to think about other issues. Where was the client going to sleep that night? Did she need medical attention? Where were her children and were they in any immediate danger?

Lastly, what advice would you give to young lawyers as they first enter the legal industry, where corporate giving may not always be the first priority?

Nicolas: Make pro bono a priority for your own career. If your employer isn’t providing pro bono opportunities, ask for them.

Or better still create pro bono opportunities for yourself and for others in your firm.

How do you think law students in the UK may greater expose themselves to Pro Bono work in Singapore and the issues faced by the needy back at home?

Nicolas: The Singapore Law Society has some great information about unmet legal need in Singapore. There is a terrific video which I would highly recommend to anyone who is curious to discover the power of pro bono in Singapore: https://youtu.be/ yLhUN0vEuBA

Could you begin telling us more about the work that you do today, and how inter-related is your work and your pro bono work?

Josephus: As you may already know about me, I am a criminal defence specialist, and only do criminal defence work. I am quite fortunate, as when I began doing criminal defence work 6 years ago, nobody would pay a young punk, a young criminal lawyer, to defend their life or liberty. Something in me however told me that while waiting for customers, why not take this time to learn more about the area of law which I want to specialise in, improve my court craft and expose myself a little bit more. One day I walked into the pro bono services office, which administers the criminal legal aid scheme, and for a start, give me a couple of cases. And it started from there.

Could you explain how far you have allowed pro bono to intertwine with your work?

Josephus: First, I had already known what I wanted, and from the private sector’s point of view, criminal defence work is generally understood to be less profitable as criminals generally do not have much to pay unless one encounters white collar crime, which is not my area of specialty. Generally, my training with Mr Subhas was largely blue-collared in nature: murder, rape, outrage of modesty. Largely, crimes committed in Singapore are blue-collared. Altruism is also involved, and I believe that people deserve a second chance.

I spotted a ‘loophole’ in the criminal legal aid scheme (CLAS), which was that if an applicant is granted legal assistance, he cannot choose a lawyer. When I entered to volunteer my services, as the new kid on the block, I knew that the applicants could not reject me. From there, I did my very best and learned and did pro bono cases while waiting for clients to come.

From that first year, I developed a philosophy of having 70% paid work cases, and 30% pro bono cases. I had wanted such an arrangement as I believed it was fulfilling and it also constituted training as well.

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I understand that you work through the Criminal Legal Aid Scheme and the Pro Bono Services Office too. Why is it that you pick these avenues in particular to conduct your pro bono work?

Josephus: Contrary to what may young lawyers may believe, there are many pro bono initiatives under the law society and other organisations. I chose the Criminal Legal Aid Scheme (CLAS) as it was linked to my area of specialisation. It is inherently linked to my area, and I could transfer my skill from my work to pro bono, and vice versa without any duplication of work. The only difference was that one was paid and the other was not.

On the sticky topic of mandatory pro bono work in law firms, do you believe that it is a good way for lawyers and young lawyers in particular to give back or give back more to society?

Josephus: I am a supporter of mandatory pro bono for the profession, as first, this would bring us in line with others around the world, such as in New York, Korea, and Hong Kong, where pro bono hours are mandatory. Only then can lawyers renew their certification. I believe that we should be in line with such countries.

Outside law, I am also involved with giving talks to schools and organisations.

Secondly, as a small vulnerable state, the argument is the same as why we have mandatory conscription in Singapore. To be self-reliant and ready. Today in Singapore, there is a growing population, and legal services is in growing demand. With inflation and a wider income gap between the rich and the poor, the sandwich class will experience greater difficulty. While some may be able to afford a roof over their head, this does not mean they automatically are able to afford legal representation. I feel that if pro bono is not made mandatory, a large proportion will be left without legal representation, whether in criminal or civil context. For there to be justice, everyone must be equal before the law and have access to the same kind of representation.

As you can see, there is a wide range of matters lawyers can get themselves involved in. Young lawyers should get themselves involved in at an early stage of their practice.

The argument that the quality of pro bono may suffer if people are forced to do pro bono is secondary, as the work that lawyers do is governed by the law society and negligence will be punished.

Do you think family and criminal lawyers are in a better position to contribute to society?

Thirdly, I personally believe that lawyers and doctors are the elite of society, and they are within the top percentile of intellectuals who possess exclusive knowledge. The law and rules and regulations govern every aspect in society. The knowledge cannot be used only for a person’s benefit. While clichéd, it goes back to what is said in Spiderman, with great power comes great responsibility.

Also, contrary to what people believe, my pro bono involvement is way more than just criminal law. When younger, I told the Pro Bono Services Office, I will sign up to work at community legal clinics once a week, for a year. There, work involved a wide range of legal advice, such as probate, divorce, conveyancing. This gave me a very good base with communication skills with the man on the street. It was very holistic and allowed me to practice criminal law in the court, and connecting with the man on the street outside the court room.

Josephus: In the law society we have a project called the project law help, supported by many corporate lawyers and big corporate firms. The project renders corporate governance advice to charities, NGOs and other non-profit organisations.

A lawyer like me would not be in the best position to advice.

I have no expertise in company law, or corporate governance.

This is where corporate lawyers come in very handy. This is also pro bono.

I have seen you involved in may pro bono initiatives and you have contributed greatly to the pro bono legal environment.

Could you tell us which upcoming development in the pro bono scene in Singapore are you most excited by?

Josephus: It would have to be the Enhanced Criminal Legal Aid Scheme. For the first time historically, our government has come in to endorse funding for the criminal legal aid scheme. While previously, the government has provided aid through the Legal Aid Bureau, it has tried to steer away from using tax payers’ money to defend criminals, which the state is also persecuting.

When this was announced, it is very exciting. It leads the way towards having a public defender’s office, which we see in some western liberal states, providing legal service to under-privileged accused persons.

To qualify for such aid, there will be a means test and a merits test. The means test is generally decided on income, and merits is based on the assessment of lawyers.

Now, with tax-payers money being involved, we must be very careful that the scheme is reserved for the under-privileged in society. If we were to be loose with legal aid grants, it also has another effect: it cannibalises the legal profession, as people who 175

can afford will avoid hiring their own legal advice.

Luke 12:48, For everyone to whom much is given, of him shall much be required.

From 6 years of practice, I cannot say that I like what I am seeing right now. Many lawyers, and especially the younger lawyers are gunning for the big money, and for the prestige. I feel that that should not be, as everyone has a duty to the community.

While this may sound draconian, we require mandatory pro bono.

Could you tell us whether you think the law society might and whether it should set in place new rules mandating pro bono?

I do not think the power lies in the law society, rather, it lies in legislature. If parliament is going to come in, and have a ‘Pro Bono Act’, that will be law, and will be ultimate.

Entering pro bono, you have shared that you believe it has improved your holistic skills, among other benefits. What would you say has been your greatest benefit from pro bono work?

Josephus: I think over the last six years and having done so much pro bono in all quarters, it has been a very humbling journey, and on a personal level it makes me content on a daily basis.

It sounds clichéd, but everyone has one’s own set of problems.

When one starts doing pro bono, and contributing to the under

privileged, pro bono has made me a better human being and connected me to many people at different levels of society. To be able to do something which matters is the greatest take away.

When you were a student in Southampton, did you ever feel disconnected with social issues in Singapore? Also, how would you advise overseas law students to greater expose themselves to pro bono work and outstanding social issues back home?

Josephus: Firstly, I did not know what pro bono meant. I did not have a conventional education route. When studying overseas, in the UK, I saw with my own eyes how difficult the welfare system is. On coming home, while my three years in the UK did not give me an inkling towards what I am doing today with pro bono, but it did provide me a point of social comparison between the two countries, and allowed me to understand what kind of country I would like to live in.

When today engaged with the pro bono office, it comes back to me and allows me to realise that with the knowledge I possessed as a lawyer, I could make a real difference in society.

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Cover: Flickr CC @ yeowatzup

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