LEX LOCI 2017

LEX LOCI 2017 The UKSLSS Legal Journal

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Foreword by Chan Sek Keong

Once again, I have been accorded the privilege of writing the foreword for Lex Loci 2017. Ever since I wrote the first foreword in 2010, Lex Loci has published many stimulating articles and commentaries on legal developments and practice in Singapore.

Another great contribution of Lex Loci to the law students studying in NUS and SMU is that many articles and comments in Lex Loci also deal with comparative law scholarship, especially developments in English law. For example, one of the articles in this issue comments on the decision of the UK Supreme Court on a fundamental principle of criminal liability which does not seem to have been noted by our local scholars.

Similarly, another article also provides a historical perspective to an important principle of the common law on freedom of speech in the context of contempt of court and fake news which again do not appear to have attracted the attention of our local scholars. If so, it would be a shame.

Although Lex Loci 2017 reflects a need to re-orientate its writing and research towards a more substantive comparative analysis between English and Singapore laws and would have benefited from increased commentary on Singapore law, it does provide two informative case notes on English law, one on the Supreme Court decision in the Brexit case, and the other on Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Ltd, and 4 feature interviews.

There are two discussions in Lex Loci 2017 that are of particular interest and one speculative argument on international law on sovereign immunity. The first relates to the “twin crime” cases. In R v Jogee (Appellant) [2016] UKSC 8 (“Jogee”) the UK Supreme Court held that the common law took a wrong turn in two cases, Chan Wing-Siu v The Queen [1985 1 AC 168 and Regina v Powell and English [1999] 1 AC 1 in applying the foresight test, departing from the well-established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. The Singapore courts have been struggling with the problem of common intention under s 34 of the Penal Code, and the liability of a secondary party since 1972 when Mimi Wong v PP [1972–1974] SLR 73 was decided. In 2010 the Court of Appeal held in Daniel Vijay s/o Katherasan v. PP [2010] 4 S.L.R. 1119 that the decision in Mimi Wong had been misunderstood by subsequent courts. The author argues that both Jogee and Vijay are normatively correct.

The second article examines sub judice contempt of court. The author, following Schneebaum & Lavi’s analysis, challenges the idea prevalent in Singapore that the sub judice rule is predicated on jury trials, and therefore has no relevance since there are no jury trials in Singapore and because judges would not be influenced by what others say about a pending case. The author contends that this argument is a misconception because historically, on the basis of St James’s Evening Post (1742), Lord Hardwicke was more concerned with the then growing power of the press in influencing public opinion against parties in court

proceedings. The author likens this situation to the contemporary environment in which the Internet has given rise to social media which enables every kind of opinion, propaganda, invective, abuse and spin to be expressed. Social media makes it possible for every institution of state to be criticised responsibly (which is acceptable) and also irresponsibly (which is not acceptable).

Lord Hardwicke’s judgment described 3 kinds of contempt: “There are three different sorts of contempt.

One kind of contempt is scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard.” But, prejudicing the minds of judges did not appear to him to be contempt, presumably because the case was not tried before a jury.

The Administration of Justice (Protection) Act 2016 goes beyond Lord Hardwicke’s 3 categories. Section 3 provides for 5 categories of contempt of court. The Singapore Government is concerned about the need to protect the Judiciary from unfair and unfounded criticism and abuse, and currently “fake news” which could tarnish the reputation of the courts and public confidence in the impartiality of the courts. This is especially so when social media allows every person with a view to express that view, however divisive and harmful it may be to the society of which he is a member.

But the Act does not punish all speech critical of the courts. Explanation 1 provides that fair criticism of a court is not contempt by scandalising the court. Explanation 2, in providing that a judge is susceptible to being influenced by the mass media and social media in relation to any impending or pending case, is more honest and realistic in its assessment of the human qualities of judges as a whole. It will be difficult to find a judge who can immunise himself against all opinions. After all, bias can be consciously or unconsciously induced.

The third article “Sovereign Immunity and Singapore” examines the applicability of the doctrine of sovereign immunity to the detention by the Hong Kong Customs of 9 Terrex Infantry Carrier Vehicles (“ICVs”). The Terrex ICVs were detained for about 2 months when the container ship carrying it berthed at Hong Kong's Kwai Chung Container Terminal in the course of transhipment to Singapore. The Terrex ICVs were returned after a series of diplomatic discussions between Singapore and Hong Kong.

The author argues that if Hong Kong had refused to release the Terrex ICVs, Singapore would have been able to rely on sovereign immunity to seek their release as in the landmark case of Democratic Republic of Congo v FG Hemisphere Associates in which the Hong Kong Court of Final Appeal had recognised the doctrine of absolute sovereign immunity for all forms of government activity and assets, including commercial activities. On the basis of this decision, the author’s argument seems right in principle and logic, especially given China’s own position on sovereign immunity. However, sovereign immunity was not given by the Hong Kong authorities as a reason or the reason for the release of the Terrex ICVs. The author then goes on to assert that international law would not protect Singapore’s sovereignty because a big power like China could ignore international law just as the US did in the case of The Republic of Nicaragua v. The United States of America. So then, what could protect Singapore from a big power? The author optimistically recommends that Singapore should invest in the conception of an ASEAN union to provide protection. This subject is obviously too difficult to delve into in an article of this kind.

Beyond these few articles, the rest of the oeuvre has less practical value to Singapore readers. The article on the problems of increasing the role of mediation in disputes in England could do with a comparison with

what is happening in Singapore. Mediation will not take off unless everyone involved in providing ADR solutions encourages it. In Singapore, the Government, the Courts (the entire hierarchy of Courts), the Bar and the Community all embrace mediation as the best way to resolve disputes. Mediation is a great success story in Singapore, and this year the Singapore Mediation Centre will celebrate its 20th anniversary.

International arbitration continues to grow in Singapore as its legal services hub grows in tandem. The features on Going Global and Understanding Arbitration for the Aspiring Practitioner are useful for new practitioners. Even then, the sky in Singapore is cloudy in the future as the growth in the number of law graduates qualified to practise far exceeds the growth in Singapore’s economy. This situation is likely to last for many years, and it is likely that the attrition rate or the number of lawyers leaving practice will rise.

The UKSLSS should alert its members to this situation so that its members will not feel disappointed or aggrieved if they cannot get training contracts in Singapore when they return.

As for Lex Loci 2017, I can only repeat what I wrote in 2010 – that UK law students are sometimes able to bring light to certain aspects of the common law in Singapore by virtue of their better knowledge of how English common law developed in tort, contract, criminal law and procedure. In this respect, they have the benefit of a different legal education and perhaps a different perspective and understanding of the nature and history of the common law.

Chan Sek Keong Chief Justice of Singapore 2006-2012 28 July 2017

President's Message

Dear Readers, The end of another year has almost come upon us.

It is an immense honour, and privilege, for me to be writing the President’s Foreword for the 12th Edition of Lex Loci, the annual law review of the United Kingdom Singapore Law Students’ Society.

Since its establishment in 1998, the UKSLSS has aimed to serve as a platform for Singaporean law students based in the United Kingdom and the legal profession back home, allowing them the opportunity to interact via career based events and to represent their interests as a student body. An integral part of this aim has been Lex Loci, a wholly student made law review that offers a comparative in-depth analysis of Singapore’s law from a perspective of an English legal education.

I have always wondered to myself what a mammoth task it must be to put together a journal, much less a legal journal in itself. As law students, we are almost always preoccupied with the dutiful completion of our legal education and “surviving law school”. To be able to gather articles from our diverse membership across the United Kingdom, and to coordinate all of them together would seem an insurmountable task.

This year, I have seen for myself what a prodigious effort it is indeed.

And so here it is before you, an amalgamation of works, writings that spans countless hours of reading, critiquing, and editing. Much credit is due to our Editor-in-Chief, Faye Shen, and her Editorial Committee team for completing this monumental task. I am proud of their hard work, and hope that you will enjoy the fruits of their hard labour as much as we do.

As you flip through the pages of Lex Loci, you'll see an encapsulation of our members’ works, as they put their best foot forward to give their views and critiques of developments in Singapore law. I highly recommend you read either what is relevant to you, or read it in its entirety. Personally, Lex Loci has enabled me to see the law through the lenses of our capable writers, raising refreshing new angles of thought and approaches that had never occurred to me before. This year, in the first of its kind, Claudia Quek takes us back in time through “Contributions of the Roman Jurists to the Development of Roman Law” to evaluate the contributions of jurists and subsequent shifts in juristic interpretation of Roman Law. The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 and its subsequent adoption by the Singapore courts in Hii Chi Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 back in May 2017 has struck ripples among the medical community, affecting from across the board specialists at our hospitals right down to the friendly neighbourhood GP in the dispensing of medical advice to patients. I am happy to announce that this year’s rendition of the Singapore Legal Forum has elected to include Medical Law as one of our discussion topics, a brilliant illustration of how our Society continues to remain cognizant of developments in Singapore’s laws halfway around the world.

It is common knowledge that the law is never mastered, but remains a continuous study. There are constantly new questions to ask, ideas to revisit, and new perspectives to explore. Lex Loci provides the perfect vehicle to do all of these, applying our study of the English law whilst keeping abreast of legal developments back home. Submitting an article to Lex Loci forces one to remain aware of the latest changes in the law, and simultaneously offers his or her view on the issue based on what has been read or taught at law school. I firmly believe that our input adds an element of diversity, which can only be beneficial for stimulating legal discourse in Singapore’s jurisprudence.

Singapore’s legal arena continues to see expeditious development across the board, surfacing interesting areas of practice such as construction, maritime and intellectual property all of which are responding to Singapore’s embracement of technology and its gradual projected development and growth as an infrastructure hub. These are exciting albeit busy days for lawyers, and require competent as well as adaptable counsel, who are not just simply adhering to the black-letter law. For example, the fields of corporate or commercial practice have seen an increase in the volume and need for cross-jurisdictional transactions.

This requires an intimate knowledge of the workings of a business and the needs of the client, who come forward with problems and expect efficient and cost-effective solutions. These said clientele range from individuals, SMEs, organisations, to the biggest corporations in the world.

My past two predecessors have faced difficult times throughout the course of their presidencies, with the delisting of 8 of our member universities. Coming in 2 years after the policy was implemented has given me plenty of time for reflection and afterthought, and I can only stress that the words of my predecessors still ring true today, that “the UKSLSS and its members remain diligent purveyors of the law.” It is a fact that there has been an oversupply of qualified lawyers to the profession. It is also true, that the glut, which has been attributed to a simple demand and supply rationale, has struck worry and even fear for the future. We do not deny these things. However, it is my firm belief that our universities will continue to produce legal minds who possess the required skillset for practice. We will not only supply lawyers, but will provide excellent future solicitors and advocates who possess an international outlook and are problem solvers.

In recent years, we have also seen an increase of international law firms establishing themselves and calling Singapore home, and our members will continue to benefit from having an international outlook and

solid grounding in common law through their education in the UK. My own law school experience at the University of Leeds has been nothing short of a remarkable experience, involving not just the academic and theoretical study of the law, but equipping me with imperative skills necessary for the basic tenets of lawyering. This continues to be the case across most law schools in the UK. Hence, being 6000 miles away from Singapore does not deter nor distance us from remaining relevant to the needs of the legal fraternity back home. We will tamper expectations with the reality of the situation back home, but we will also continue to work hard on advancing our personal skillsets, and it might perhaps be more propitious to say that despite the implementation of the policy, there remains employers willing to hire, and I trust that UK law students would stand in good stead alongside their local counterparts.

With the increase of international law firms establishing themselves and calling Singapore home, our members continue to benefit from having an international outlook and solid grounding in common law through their education in the UK. My own law school experience at Leeds University has been nothing short of a remarkable experience, involving not just the academic and theoretical study of the law, but equipping me with imperative skills necessary for the basic tenets of lawyering. This continues to be the case across most law schools in the UK. At this juncture, sincere thanks are also in order. My sincere gratitude goes firstly to Mr Fred Ooi, whose splendid piece of artwork is featured on our very cover page of Lex Loci. His take and drawing of the old Supreme Court of Singapore is a new feature of Lex Loci, and one I trust will evoke fond memories of the old location that used to be the highest court in our land.

I would like to also extend my gratitude to Senior Judge and former Chief Justice Chan Sek Keong once again, for his continued support and gracing us with his words of wisdom. As Patron of Lex Loci, he has continued, coming from the highest echelons of the judiciary of Singapore, and himself a senior and esteemed figure of the bench, to provide us with his critique, reflection, and words of wisdom through his foreword. We are more than grateful and blessed to have him support the Society’s efforts. Beyond the academic articles and commentaries, I would like to thank Senior Counsel Chan Leng Sun, Anusha Hegde, Ya Lan Chang, Desmond Chang, Magdalene Lu, and Mark Lee for allowing all of us a glimpse and snapshot into their lives, both professionally and academically. Additionally, the Executive Committee would like to express our appreciation towards our generous sponsors, as Lex Loci would not have been possible without their support and generosity.

Throughout my term as President, we have received guidance and advice, sometimes gently nudged in the right direction by our Society’s Board of Advisors. They have been with us through thick and thin, and I would like to thank Paul, Karin and Josephus for their unwavering time, effort and support despite their busy schedules as practicing lawyers. I am also proud and elated to welcome Ms Shobna Chandran, a former Justices Law Clerk (JLC) and experienced arbitrator, to our Board of Advisors this year and into our bigger UKSLSS family.

As I reflect upon my presidency throughout the year, I would like to think of the Society as a continued work in progress. Each year the Society receives a new Executive Committee with different people of different backgrounds and ideas. Several Executive Committees have come and gone, and they each bring their own unique touch and flavour to the mix. But one thing we have in common; our relentless aspirations to serve the greater community and for the Society to achieve greater heights. It is also to ensure that our members are better prepared for a career in the law, academically, mentally, and emotionally. As

this year’s Committee nears its terminus ad quem, I strongly encourage all other members of the UKSLSS to get involved and consider joining the Executive Committee. I can assure you that you will not regret it.

To my Executive Committee, a sincere thank you from the bottom of my heart. We have had quite the journey, with more than half of our committee spread geographically all over the United Kingdom. We have gone from colleagues pursuing a common goal, to friends today that I would be more than happy to work with again. They have shown the upmost dedication and efficiency to their roles, and it has been my privilege to lead and serve alongside the rest of them to work for the betterment of our Society.

To my family and loved ones, thank you for your unstinting support and encouragement throughout the course of my presidency. It has been a tough but extremely fulfilling year, and I can only trust that I have walked out of this surreal experience a better man and a better son.

Finally, I would like to take this opportunity to thank most importantly you, the Reader, and all other mem-bers of the UKSLSS for your continuing support of the Executive Committee throughout the course of our term. It has been a profound honour and privilege for me serving you as President, and an experience I would take away with fond memories. And to those who are joining us or have yet to join the UKSLSS, a warm welcome to the family!

I would like to leave you with one of my favourite quotes, aptly applied in not just your legal education, but to serve as a reminder as to our purpose within the profession.

“If you can’t figure out your purpose, figure out your passion. For your passion will lead you right to your purpose.”

- T.D Jakes Echoing the words of our former Attorney-General V.K Rajah, to “Be Yourself, Embrace Competition and Seek a Larger Purpose”, it is my fervent hope that you find your passion within the law, wherever that may be, and that as future lawyers serve the wider community with strength of purpose, and the upmost passion to uphold the rule of law. I wish you nothing but the very best not only in your legal career, but in all that you do.

With the warmest of wishes,

Brandon Lim Zi Yi President Executive Committee 2016/2017 United Kingdom Singapore Law Students’ Society

Editorial Foreword

Dear Readers, It is with great pleasure that the Editorial Committee and I present to you Lex Loci 2017 as the 12th edition of the student law review that the United Kingdom Singapore Law Students’ Society (UKSLSS) has seen through till date.

Following in the footsteps of previous years, the UKSLSS has collaborated with our vast membership to produce a collation of works for the good read of the society. Lex Loci is a collection of works from our writers and editors, whom together, have worked hard to produce the pages of this magazine. This year, the Committee has sought the opinion of our members and had taken a collective decision to let our writers decide what they wished for Lex Loci to contain. The Society is as much ours, as it is yours, and consequently Lex Loci is a work that we hope would be representative of our membership. As such, we have allowed free reign over the direction of their pieces and as a result, within these pages of Lex Loci, you will find an interesting array of articles each making a statement of its own. This edition sought to expound on the existing academic nature of our publication, venturing into greater depths of the legal academia, as accurately represented through a spread of case studies and comparative analysis - reads that I hope you will enjoy and also stimulate some deep afterthought.

In “Uncovering the History of Sub Judice Contempt: The New Battle for the Public Sphere”, Joel Wong takes us through the contempt of court bill that was discussed in the Singapore Parliament late last year.

I am proud of his work and effort. Not only does it provide critical analysis on the issue, it also goes a long way in showing that we do our very best to keep up with the news in our homeland - even as mere law students. Commercial and current awareness seems to be the name of the game in law firm applications nowadays, and being aware of legal developments both in the UK and back home is a skill I trust will put

many of our writers of Lex Loci in good stead for the future.

I have but one humble request for the reader. As you browse through the pages of Lex Loci, take a moment to see if these stories resonate with you. They may have been something you have read off the newspapers, heard at law school, or just come across while doing your readings. After all, Lex Loci 2017 was made with the idea that these stories should strike a chord with your legal education and life. Our writers have provided snapshots and windows into their views on legal developments both back home and in the UK. These are the basic foundations of what Lex Loci is about - a law review for students, by students.

I would like to give my thanks. First, I would like to take this opportunity to formally thank Senior Judge and Former Chief Justice Chan Sek Keong for his contribution of a foreword for this year’s Lex Loci, and for his long-standing support towards the UKSLSS over the past years. It also goes without saying that this gratitude extends to our sponsors, without whom, this print would not have been possible.

It is also with great thanks that we have had the treasured opportunity to feature Senior Counsel Chan Leng Sun from Baker McKenzie.Wong & Leow, Anusha Hegde (the President of ELSA), Ya Lan Chang, Desmond Chong, Magdalene Lu, and Mark Lee who have availed their perception on their legal careers. Thank you sincerely for your contributions to Lex Loci.

The Editorial Committee would like to express our appreciation for the passionate and talented members of the Society for their enthusiasm in participating in the efforts of the UKSLSS. It is our hope, and deep seated desire, to see that Lex Loci will continue to remain relevant for our readership, and continue to grow and change with the legal times.

Last but not least, I would like to thank my team within the Editorial Committee for their work despite our short but sweet tenure. It has been a tough and demanding journey, and the job was never easy, but I am proud that my team of editors have bravely stepped up to the challenge to produce Lex Loci. In particular, I would like to commend Charlotte Ng, our Vice-Chief Editor and Joel Wong as Managing Editor, who both deserve particular recognition for their exemplary contributions in curating this legal magazine.

They have put in countless hours of hard work to ensure the works of others remain up to standard, and for this, I thank them sincerely.

Aside from Lex Loci, the Editorial Committee is proud to have taken breadths to expand the Society’s online presence through a steady flow of headline updates, and the maintenance of activity and engagement with the students. Understanding the demand for increased general commercial and current awareness, the Committee has widened our scope and sought to bring not only legal but commercial and current updates to its members. For this we thank the woman behind the job, Kavisha Sharma, Online Managing Director of the Editorial Committee for her consistent and stellar efforts. SpyGlass has provided weekly insights and it would be wise to look forward to Firm-in-Focus - a continued initiative that will be performed and executed for the rest of our tenure.

When I took over the role of EIC this year, Lex Loci was a publication in which I had huge shoes to fill. The likes of my predecessors, Esther and David, have all done tremendous jobs with the publication. Producing a law review is never easy. Our editors and writers are spread geographically all over the United Kingdom, and coordinating the collation of all the articles can sometimes really be a nightmare. However, the review that you see before you now stands as a gleaming example of our resilience as law students and

UKSLSS members to produce something that we are proud of. I can only trust that I have lived up to the expectations of a publication such as Lex Loci. It is also my hope, and the hope of all members of my team, that we have demonstrated ourselves to be a student-made publication, open, relevant, and encouraging its readers both in Singapore and the United Kingdom. I hope that Lex Loci 2017 serves its purpose well, and be seen as a read not to be missed by the most curious of minds.

I hope you have a pleasant read, and I trust that you will find Lex Loci 2017 as enjoyable as we found producing it to be.

Faye Shen Editor in Chief Editorial Committee 2016/2017 United Kingdom Singapore Law Students’ Society

Managing Editorial Commitee

From left to right: Charlotte Ng (Vice Chief Editor), Joel Wong (Managing Editor), Faye Shen (Editor-in-Chief), Kavisha Sharma (Online Managing Director) Editorial Committee Members: Benedict Tse, Safi Naseem, Claudia Quek, Kenneth Chong, Ong Xin Jie, Yau Chun Shin, ShiYi Lu, Victoria Seow.

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Executive Committee

Standing (from left to right): Lim Ji Yang (PR [Sponsorship Director]), Andria Tay (PR [Professional & Academic Affairs] Director), Faye Shen (Editor-in-Chief), Ng Shu Wen (Finance Director), Muhammad Hasif (Vice-President) Bottom row (from left to right): Lim Le Win (Marketing Director), Brandon Lim (President), Nicole Lim (Secretary)

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CONTENTS

Opinion – 18 –

Private remedies for public wrongs? The applicability of the Derbyshire principle in Singapore in light of Ting Choon Meng v Attorney General Rabin Kok, University of Cambridge – 25 –

Mediation - is its future dependent on judicial encouragement?

Kavisha Sharma, University of Bristol – 30 –

Stimulating criminal law reform in complicity: the mandatory death penalty Kenneth Chong, University of Oxford – 38 –

Regulating Euthanasia with the Criminal Law: a comparative analysis on how euthanasia is regulated in England, India and Singapore Foo Tze Ern Darren, University College London – 44 –

Uncovering the History of Sub Judice Contempt: The New Battle for the Public Sphere Joel Wong En Jie, University College London – 49 –

Sovereign Immunity and Singapore Shawn Siah, University College london

Case Notes – 52 –

Case Note: Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Ltd Charlotte Ng Jane Ting, London School of Economics and Political Science

– 55 –

Case Note: Challenges to the Reserved Presidential Election Yau Chun Shin, London School of Economics and Political Science – 61 –

The constitutional and other legal implications of the Miller decision Filbert Lam, University of Edinburgh

Roman Law – 67 –

Contributions of Roman Jurists to the development of Roman Law Claudia Quek, University of Cambridge – 70 –

Roman Paper on Ritual and Conveyance Edward Low, University of Oxford

Interviews – 77 –

Interview with Chan Leng San - Understanding Arbitration for the Aspiring Practitioner Benedict Tse, London School of Economics and Political Science – 82 –

ELSA - A truly European Law Student Experience

Charlotte Ng Jane Ting, London School of Economics and Political Science – 86 –

Interview with Ya Lan Chang and Demond Chong - In pursuit of higher knowledge Charlotte Ng Jane Ting, London School of Economics and Political Science Anusha Hedge, University of Leicester – 93 –

Interview with Magdalene Lu and Mark Lee - Going Global

Charlotte Ng Jane Ting, London School of Economics and Political Science

PRIVATE REMEDIES FOR PUBLIC WRONGS? The applicability of the Derbyshire principle in Singapore in light of Ting Choon Meng v Attorney-General

by Rabin Kok, University of Cambridge The landmark case of Ting Choon Meng v Attorney-General1 highlights the Singapore legal system’s ongoing efforts to balance the values of individual freedom of expression, protection of individual reputation and the public interest.

In Ting Choon Meng, the Attorney-General on behalf of the Ministry of Defence (“MINDEF”) applied for an order under Section 15 of the Protection from Harassment Act (“POHA”) against the appellants, Dr. Ting and socio-political site The Online Citizen, in respect of allegedly false statements regarding a patent dispute between Dr. Ting

and MINDEF. This would have prohibited publication of the statements without an accompanying notification that the statements were false.2 Ultimately, a majority of the Court of Appeal reversed High Court’s decision,3 ruling that the Government had no remedy under s.15 POHA for two reasons. First, the Government was not a ‘person’ for the purposes of s.15.4 Further, the court held that it would not be just and equitable to grant the Government such a remedy in Dr. Ting’s case.5

[2017] SGCA 06 s.15, Protection from Harassment Act, Cap. 256A. Rev. Ed. 2015.

3 Ting Choon Meng v Attorney General (HC) [2015] SGHC 315 4 Ting Choon Meng (CA) at [11]-[37] 5 Ibid., at [38]-[48] 1 2

18

Observers of the case noted that MINDEF had sought a remedy under POHA, rather than sue Dr. Ting in defamation.6 Given the potential uncertainties surrounding the interpretation of s.15 (which ultimately proved fatal to MINDEF’s case), a defamation suit would have been a more strategic course of action. Indeed, the High Court found that one of the statements complained of by MINDEF was false.7 The same finding would presumably have been made in a defamation action, meaning that the defendants would not have been able to raise the defence of justification.8 Though the defendants could have raised the defences of fair comment and/or qualified privilege, it is submitted that these defences would likely have failed due to their extremely limited scope in Singapore.9 One possible reason for MINDEF’s reluctance is the socalled ‘Derbyshire principle’, which bars organs of government from suing in the tort of defamation in order to preserve the public interest in free and open criticism of government bodies, which already possess significant avenues to defend themselves.10 However, it is unclear if this principle applies in Singapore.11 This essay will argue that the Derbyshire principle is applicable in Singapore. First, the origins of the principle and its treatment by the Singapore courts will be explored. Next, it is argued that unlike many other English and American innovations to the tort of defamation, Derbyshire is based on a common-law jurisprudence acceptable in Singapore, rather than on a human-rights jurisprudence alien to our legal system. Finally, it will be argued that recognition of the Derbyshire principle will not upset the balance between freedom of speech and protection of reputation struck by our courts, as most recently reflected in Ting Choon Meng.

The Genesis of Derbyshire In Derbyshire County Council v Times Newspapers, an English local authority sued a newspaper in the tort of defamation for publishing an article that questioned the honesty of the council’s investment decisions. The trial judge held that the local council had locus standi to sue, following the law as it then stood.12 This was overruled by the English Court of Appeal for two main reasons. First, the court cited a need for consistency between English law and the protection of freedom of speech under Article 10 of the European Convention of Human Rights (ECHR).13 Further, the court considered that to allow a public authority to sue would have a chilling effect on free speech and prevent legitimate criticism of government.14 The House of Lords unanimously upheld this decision.

Lord Keith held government bodies had to be open to “uninhibited public criticism”, free from the spectre of possible defamation suits,15 especially since public authorities could defend themselves through public statements.16 Unlike the Court of Appeal however, the House of Lords considered this principle a common-law liberty,17 not dependent on Article 10 of the ECHR . The Derbyshire principle has since been recognized in numerous common law jurisdictions, including Hong Kong,18 India,19 and Malaysia.20

Derbyshire comes to Singapore?

Singapore has seen no shortage of defamation actions.

Somewhat surprisingly, the applicability of Derbyshire has never been tested in Singapore21 although the issue was almost litigated in 2013 when the Council for Private Education threatened to sue blogger Han Hui Hui.

Kelly Ng, “Government Agencies Should Be Included Under Anti-Harassment Law: Experts".: <http://www.todayonline.com/singapore/government-agencies-should-be-included-under-anti-harassment-law-experts> Accessed on 31January 2017.

7 Ting Choon Meng (CA) at [8] 8 See Aaron Anne Joseph v Cheong Yip Seng and ors [1996] 1 SLR(R) 258 at [73] 9 Tey Tsun Hang. “Legal Consensus: Supreme Executive, Supine Jurisprudence, Suppliant Profession of Singapore.” Centre for Comparative and Public Law, Hong Kong. 2011. pp. 40-48 10 Derbyshire County Council v Times Newspapers (HL) [1993] AC 534 at 550D 11 Supra. note 6.

12 Bognor Regis Urban District Council v Campion [1972] QB 169 13 Derbyshire County Council v Times Newspapers (CA) [1992] QB 770 at 813B and 835D 14 See City of Chicago v Tribune Co [1923] 139 NE 86 15 Ibid. at 347F 16 Ibid. at 550D 17 Ibid. at 551F 18 Hong Kong Polytechnic University v Next Magazine Publishing Ltd. and anor [1997] HKLRD 514 at [15] 19 Rajagopal v State of Tamil Nadu [1995] AIR 264 at [26] 20 Utusan Melayu v Dato Sri DiRaja Hj Adnan bin Hj Yakob [2016] 5 MLJ 69 at [18]-[19] 21 Andy Ho. “Can a public body sue for defamation?” <http://news.asiaone.com/news/singapore/can-public-body-sue-defamation> Accessed 31 Jan 2017.

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Both parties eventually discontinued legal action.22 Therefore, the only statements of law or principle on this issue are scattered obiter dicta from the Singapore courts in cases turning on other points of law.

pore law.29 Indeed, the court appears to have proceeded on the assumption that it was. This is the clearest indication yet that the Derbyshire principle is part of Singapore law.

The applicability of Derbyshire was first considered in 1997 by the High Court in Goh Chok Tong v Jeyaretnam Joshua Benjamin (“JBJ”).23 Though it was not pleaded, S Rajendran J concluded that the principle was not yet part of Singapore law but might be adopted in future. He also accepted that the principle was rooted in common law, independent of the ECHR.24 The Court of Appeal did not discuss the point in its subsequent judgment.25

The Derbyshire principle was subsequently discussed

by VK Rajah J in Chee Siok Chin v Minister for Home Affairs.30 Again, it was not raised in the pleadings and was not directly relevant to the issues. Derbyshire was mentioned mainly to make it clear that individuals holding public office could sue in defamation, even if public bodies might not have this right.31 Nonetheless, Rajah J took a more pessimistic view of the applicability of Derbyshire in Singapore, emphasizing that it “required closer examination”.32

In Tang Liang Hong v Lee Kuan Yew (“Tang Liang Hong”),26 the Court held that Derbyshire applied to public bodies, whereas the plaintiff in Tang Liang Hong was suing as a private citizen and thus was not barred by Derbyshire.27 This passage was cited with approval in Lee Hsien Loong v Roy Ngerng.28 Notably, the court did not reject the notion that the principles in Derbyshire were part of Singa-

In short, it appears that it is open to the courts to recognize Derbyshire as part of Singapore’s common law, though there has been no clear ruling. Most notably, Singapore’s highest court has appeared to assume in Tang Liang Hong that Derbyshire did in fact apply in Singapore.

Ibid.

[1997] 3 SLR(R) 46 24 JBJ at [26] 25 See Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] SGCA 42 26 [1997] 3 SLR(R) 57 27 Tang Liang Hong at [116] [2015] SGHC 320 at [95]-[96] 28 [2015] SGHC 320 at [95]-[96] 29 Ibid. at [114] 30 [2006] 1 SLR(R) 582 31 Ibid. at [68]-[69].

32 Per dicta of Mahoney JA in Ballina Shire Council v Ringland [1994] 33 NSWLR 680 22 23

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Derbyshire: A creature of the common law Various new defences to defamation33 have largely been rejected in Singapore, as these innovations are rooted in the European Convention of Human Rights34 and the First Amendment to the United States Constitution.

However, the Derbyshire principle prima facie belongs to the body of English common law recognized in Singapore. The applicability of English common law in Singapore is governed by Section 3 of the Application of English Law Act (“AELA”),35 which provides that: 3. — (1) The common law of England… so far as it was part of the law of Singapore immediately before 12th November 1993, shall continue to be part of the law of Singapore.

(2) The common law shall continue to be in force in Singapore, …so far as it is applicable to the circumstances of Singapore and its inhabitants….

Therefore, any English innovation to the tort of defamation which was introduced to the common law after 12th November 1993 and/or is “not applicable to the circumstances” of Singapore, is not part of Singapore law.

For this reason, the Court of Appeal in Review Publishing Co. Ltd. v Lee Hsien Loong36 (“Review Publishing”) rejected the journalistic privilege in Reynolds v Times Newspapers Ltd37 on three main grounds. Reynolds, having been decided in 2001, was not part of the common law of Singapore under Section 3(1).38 Further, the Court found that Reynolds was developed to align the common law with Article 10 of the European Convention as required

by Section 3 of the Human Rights Act 1998 (“HRA”).

Consequently, Reynolds could not be imported into Singapore law.39 Finally, in light of Section 3(2) of the AELA, that the Reynolds privilege would not strike the correct

balance between free speech and protection of reputation in Singapore.40 Unlike Reynolds, Derbyshire was decided on 19th February 1993, just before the commencement of the AELA on 12th November. Hence, Derbyshire is prima facie part of Singapore law (subject to modification by our courts) under Section 3(1).

Furthermore, Derbyshire is rooted in the common law, and was decided “without finding any need to rely on the European Convention.”41 This was recognized by the High Court of Singapore in JBJ.42 Thus, the courts will not reject Derbyshire as a principle rooted in ECHR jurisprudence and applicable only in England by virtue of the HRA. Notably, Derbyshire is now part of Malaysian law. In State of Sarawak v Chong Chieng Jen,43 the Court of Appeal (Putrajaya) held that Derbyshire did not apply in Sarawak because of legislative provisions there not presently in force in Singapore.44 However, in Utusan Melayu v Dato Sri DiRaja Hj Adnan bin Hj Yakob45 the same court held that the Derbyshire principle was otherwise part of Malaysian law,46 affirming Kerajaan Negeri Trengganu v Dr. Syed Azman Syed Ahmad Nawawi (No. 2).47 This is significant because Article 10 of the Federal Constitution of Malaysia48 which protects free speech is in pari materia to Article 14 of the Singapore Constitution.49 Thus, if Derbyshire is compatible with Malaysia’s constitutional arrangements, it follows that it is compatible with Singapore’s. This is also strong evidence that it is applicable to the circumstances of Singapore under Section 3(2) AELA.

See, for example, New York Times Co. v Sullivan, 376 US 254 (1964) Article 10 of the ECHR. 35 Application of English Law Act (Cap 7A, 1994 Rev. Ed.) (consd) 36 [2010] 1 SLR 52 37 [2001] 2 AC 127 38 Review Publishing at [245]-[248] 39 Ibid. at [261]-[264] 40 Ibid. at [272] onwards and [247] 41 Derbyshire (HL) at 551F 42 JBJ at [26] 43 [2016] 3 MLJ 41 44 [79], namely, s.3(1)(a) of the Civil Law Act 1956, under which the cut-off date for reception of English common law in Sarawak is 12 December 1949. Nonetheless, although the cut-off date for West Malaysia is 7 April 1956 the Putrajaya Court of Appeal in Utusan Melayu (supra. note 24) still recognized the Derbyshire principle as part of Malaysian law.

45 [2016] 5 MLJ 69 46 Utusan Melayu at [18]-[19] 47 [2013] 7 MLJ 145, at [23]-[26] 48 Federal Constitution, Reprint November 2010.

49 Constitution of the Republic of Singapore. Rev. Ed. 2015 33 34

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Freedom, reputation and the place of the media (a) The role of the media in Singapore Under Section 3(2) AELA, the common law prior to 12th November 1993 is only part of Singapore law “as far as it is applicable to the circumstances of Singapore.” This means that while the Derbyshire principle can be taken to be, prima facie, part of the common law of Singapore under section 3(1), its applicability will be unclear until the courts formally decide whether it is “applicable to the circumstances of Singapore”.

The Court of Appeal in Review Publishing laid down a non-exhaustive list of factors it had taken into account in deciding the Reynolds privilege. These factors will, presumably, guide the courts in deciding the applicability of Derbyshire to Singapore’s circumstances.

First, the Court considered that there was a special role for the media in English society that justified special protections there, as enshrined in Section 12(4) of the HRA. As the media in Singapore engaged only in “the traditional activities of commenting and reporting,” the Court declined to grant it special privileges unless there was a change in these circumstances.50 As argued above, the Derbyshire principle is not rooted in Convention rights given force by the HRA but in the principles of the common law shared by both Singapore and England, which still applied when the media there was (presumably) confined to its “traditional activities” prior to Reynolds. Thus, there is no reason why the media in its traditional role as well as private citizens should not benefit from Derbyshire protection. (b) Ting Choon Meng and Singapore’s changing political values Review Publishing held political values weighing honesty and integrity in public discourse militated against shifting the balance in favour of freer reporting, which might lead to falsehoods being propagated.51 Is a prohibition against public bodies suing in defamation consistent with these values?

The decision in Ting Choon Meng sheds some light on how the courts should answer this question. Although Ting Choon Meng concerned the applicability of s.15 of the POHA to government bodies, it is submitted that the principles undergirding the applicability of the two remedies to the government are similar. This is because both Derbyshire and Ting Choon Meng involved government organisations seeking to use remedies developed for protecting the reputation of private individuals.

The majority considered the balance between freedom and reputation in ascertaining whether it would be “just and equitable” to grant a s.15 remedy to the Government.52 In setting a high threshold for the granting of such an order, the Court considered, inter alia, that the ability of a subject to publicise its own version of the truth militated against the granting of a Section 15 remedy.53 It followed that MINDEF, a government agency, was “anything but a helpless victim,” possessing significant resources to counter false statements of fact including access to media channels, which private individuals clearly did not possess.54 Consequently, it would not be ‘just and equitable’ to grant a remedy to MINDEF, even if MINDEF was a ‘person’ for the purposes of the POHA. If it is not just to allow a public authority to use the POHA against a private individual, it must be unjust to grant public bodies the right to sue in defamation given the significant resources they already possess to drown out the voice of individuals. This is substantially similar reasoning to that employed by the House of Lords in Derbyshire itself,55 and the approval of parallel reasoning

by Singapore’s apex court in Ting Choon Meng indicates that a bar on public authorities suing in defamation is unlikely to violate the political values considered in Review Publishing.

Interestingly, the reverse of the above argument was considered in Ting Choon Meng. The appellants argued that Derbyshire showed that a public body may not invoke private remedies restricting freedom of speech against individuals.56 The minority judgment held that Derbyshire did not apply, since a remedy under s.15 the

Review Publishing at [277]-[278] Ibid. at [273] and [285] 52 Ting Choon Meng (CA) at [40] 53 Ibid. at [43]-[44] 54 Ibid. at [45] 55 Derbyshire (HL) at 550D 56 Ting Choon Meng (HC) at [26] 50 51

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POHA was not as oppressive as a defamation suit.57 The majority disagreed, holding a s.15 order was serious as shown by the high threshold required to grant one.58 In any case, it is submitted that even if a remedy under the POHA is less punitive than an award of damages in defamation, the concerns of justice and equity which might bar the availability of s.15 orders to public authorities apply with even more force in a defamation suit, where damages are far more punitive.

Conclusion This essay has contended that the courts are likely to formally recognize the Derbyshire principle as part of the law of Singapore, should the question arise. It is consistent with the AELA, as a principle not rooted in a body of human rights jurisprudence foreign to Singapore but one adopted by many of our common-law counterparts. It is also consistent with the balance struck by the courts between freedom of speech and protection of the public interest, expressed most recently in Ting Choon Meng.

In closing, it is submitted that recognition of the Derbyshire principle here will help foster a political culture where Singaporeans feel empowered to offer constructive criticism of government institutions, which in turn will improve and greatly strengthen our government.

57 58

Ting Choon Meng (CA) at [110] Ibid. at [38]

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UKSLSS AD 2017_D1.indd 2

19/06/2017 15:08:11

MEDIATION Is its future expansion dependent on judicial encouragement?

by Kavisha Sharma, University of Bristol Against the backdrop of cost cuts to the civil justice system,1 it is important for the courts to apportion their resources carefully, especially with a significant number of civil and commercial disputes.2 Consequently, alternative dispute resolution (ADR) processes, particularly mediation, play an increasingly important role. Mediation is defined as a process involving the assistance of an impartial third party and intending to facilitate an outof-court settlement. This essay seeks to discuss the future expansion of mediation, which the author interprets to include a greater and more widespread usage of mediation. This interpretation is gleaned from the key proposals put forward by the Ministry of Justice, one of which recalls the need for the greater utilization of ADR processes, in particular, mediation.3

Mediate, not Litigate Mediation is a cost-efficient method of dispute resolution. As mentioned in the Jackson Report, many cases settle too late after substantial costs have already been encountered. Therefore, it is paramount for disputing parties to engage in mediation as early as possible.4 In addition, litigation is a lengthy process. Not only does it add to costs, it also hinders business for the parties involved. Mediation offers the option of resolving disputes quickly and informally. Genn’s research substantiates that mediation was able to promote and speed up settlement.5 Furthermore, mediation is not accompanied by the formalities of litigation. Therefore, it could be a friendlier choice of dispute resolution to parties. The author opines that mediation is a quintessential process

PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 [27] (Briggs LJ).

John Hyde, ‘Gove Admits More Courts Will Close In Efficiency Drive’, Law Gazette, 23 June 2015. <http://www.lawgazette.co.uk/news/gove-admits-more-courts-will-close-in-efficiency-drive/5049558.article> accessed 10 January 2017.

3 Ministry of Justice, Solving disputes in the county courts: creating a simpler, quicker and more proportionate system, A consultation on reforming civil justice in England and Wales (February 2012, Cm 8274), p. 12.

4 Sir Rupert Jackson. Review of Civil Litigation Costs Final Report (14 January 2010), p. 355 5 Hazel Genn, Central London County Court Mediation Scheme: Evaluation Report (1998), p. 7.

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that embodies the justice system’s principles of justice, proportionality and accessibility.6 Judicial Encouragement in favour of Mediation Judges are seemingly favourable towards mediation and have played a big part in the level of success achieved by mediation. In particular, Lord Woolf is generally known to have been a catalyst for the development of ADR through “The Woolf Report,” which positively encourages the use of ADR. The report also led to the introduction of the Civil Procedure Rules (CPR), which explicitly states that litigation should be a last resort7 and that settlement is an unequivocal objective of the judicial system. In the helpful notes to the CPR, the editors state that parties have a duty to help the court in furthering the overriding objective of treating cases justly and at proportionate cost, which translates into a duty to seriously consider the possibility of ADR procedures.8 It must be noted that this has been enforced in courts, with parties being subject to cost sanctions upon unreasonable refusal to participate in the process. Furthermore, judges also have the power to order parties to attend mediation.

However, the author opines that the scope of the judiciary to promote the further development of mediation is limited. One reason for this is due to the level of discretion that judges have in making orders for ADR as well as imposing cost sanctions. The court’s discretion as to the imposition of cost sanctions is set out by rule 44 of the CPR.9 In Halsey v Milton Keynes General NHS Trust [2004], Lord Dyson listed several factors that would amount to an unreasonable refusal of ADR.10 However, he also stated that “in many cases, no single factor will be decisive, and that these factors should not be regarded as an exhaustive check-list.”11 The fact that this is not a qualified list sheds light on the room for uncertainty in terms of whether a judge will indeed impose cost sanctions. Swain & Mason v Mills & Reeve [2012]12 depicts that even within the same set of facts, judges

may disagree as to whether certain conduct would amount to unreasonable refusal. In casu, the judge at first instance held that the defendant’s declination to mediate amounted to unreasonable refusal, but this was overturned on appeal. 13 It is submitted that there may indeed be merits to the use of cost sanctions as an effective means of encouraging parties to engage in mediation. Lord Dyson stated that an adverse costs order “is an appropriate midway point between those who advance a sanction-based solution and those who favour incentives. It acts as a future threat of financial penalty on a party who unreasonably refuses to mediate.”14 Nonetheless, the aforementioned inconsistencies and uncertainties that accompany the exercise of discretion with regards to the imposition of cost sanctions are not sufficient to ensure a greater use of mediation. De Girolamo agrees that the courts are not unified with regards to the extent of their powers and it consequently remains discretionary to determine the level of their activism.15 Hence, whilst it can be argued that the threat of a cost sanction would encourage parties to co-operate and engage in mediation, it is simply not ideal for parties to lack clarity regarding the extent of their commitment to mediation.16 It is for this reason that the author believes that the future expansion of mediation is independent of the inconsistencies and uncertainties of judicial encouragement but is need of a compulsory mediation regime.

A scope for mandated mediation?

Genn’s report clearly shows that when courts have made ‘ADR orders’ directing parties to mediation, more than half of the parties who attended mediation were able to settle their cases.17 This is a prime example of the success rate of mediation when compelled to attend. This is also further supported by more recent research conducted by the Centre for Effective Dispute Resolution (CEDR) in 2012, asserting that success rates can be

Ministry of Justice, Transforming our Justice System (September 2016), p. 5.

Civil Procedure Rules, Practice Direction on Pre Action Conduct and Protocols, para. 8.

8 Civil Procedure, Autumn 2001, Volume 1, p 18, para 1.4.11.

9 Supra n.7, Part 44.

10 Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 [16] (Dyson LJ).

11 Ibid.

12 Swain & Mason v Mills & Reeve [2012] EWCA Civ 498.

13 Ibid, [25] (Davis LJ).

14 Dyson LJ, ‘A Word on Halsey v Milton Keynes’ A Talk Given at the CIArb’s Third Mediation Symposium in October 2010 (2011) 77 Arbitration, Issue 3.

15 Debbie De Girolamo, Rhetoric and Civil Justice: A Commentary on the Promotion of Mediation Without Conviction in England and Wales, Civil Justice Quarterly (2016), 35(2), 162-185, p. 176.

16 Ibid, p. 178.

17 Hazel Genn, Court-Based ADR Initiatives for Non-Family Civil Disputes: The Commercial Court and the Court of Appeal (2002), p.38.

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summarised as 70% on the day, with 20% more settling shortly thereafter.18 Lord Justice Briggs agrees that this is a “powerful testimony” of the value of mediation when it has been undertaken.19 If such success can already be gleaned from voluntary respondents, it is a wonder why mediation has not been compelled on a larger scale. Many disputing parties are not aware of the full benefits to be gained from mediation and may therefore dismiss this option too readily.

Through mandatory mediation, parties exposed to the process at an early stage will be cognizant of its merits and may choose to carry on with it, as opposed to going to trial.

Unfortunately, it still remains the general view that while judges seemingly favour mediation, they do not support express compulsion. Lord Neuberger contends that ADR does not dispense substantive justice, unlike trial.20 Genn seems to concur in suggesting that, “the outcome of mediation … is not about just settlement it is just about settlement.”21 However, the author asserts that justice can be attained in many ways. Indeed, it was recognised in Halsey by Lord Justice Dyson that “mediation provides litigants with a wider range of solutions than those that are available in litigation: for example, an apology; an explanation; …”22 amongst others. This is a significant point, especially highlighted by Dunnett v Railtrack,23 in which the claimant stated after the appeal that she would have dropped the matter if the defendants had merely apologised.24 It can be argued that compulsory mediation already exists and that there is merely a “façade of voluntariness”25 or “implied compulsory mediation”,26 whereby the compulsion is fuelled by the court’s powers to impose punitive sanctions for failing to engage in mediation. The issue of compulsion was dealt with in Halsey, in which Lord Dyson contended that obliging unwilling

parties to mediation would be imposing an unacceptable obstruction on their right of access to the court (Article 6 of the European Convention on Human Rights).27 However, it is the author’s view that being required to attend mediation does not mean that a settlement has to be made; access to the court will remain an option and not be compromised and Lord Dyson has since correctly modified his position regarding the Article 6 ECHR issue. Furthermore, the implementation of a compulsory regime would be complementary to litigation and not a universal solution; the author accepts that mediation may not be suitable for every case.

How then could mandatory mediation be enforced? Lord Clarke M.R. suggested that, “the court has sufficient powers at present routinely to direct the parties to take part in a mediation process or attend a mediation hearing during the course of the pre-trial stage of any proceedings.”28 This gives the case at hand a chance for settlement before advancing too far down the litigation path and this can also be built within the litigation process. This option is ideal as it does not require amending the existing CPR rules. A routine direction by the judiciary would successfully enable the future expansion of mediation on the condition that the activism of individual judges is consistent, which is not the case at present.

Consequently, it is worth looking at Canada as an example of legislative endorsement of mandatory mediation, where a regime has existed since the 1990s. Civil procedure rules in several Canadian jurisdictions either prescribe or expressly authorise courts to mandate participation in pre-trial ADR.29 For example, in Saskatchewan (which holds Canada’s longest-standing mandatory mediation programme), the legislation prescribes that “the parties shall attend the mediation session before taking further step in the action or matter.”30 Albeit not nationwide, a consequence of legislative approval of mandatory mediation is that Canadian courts can be

Supra n.1, [24] (Briggs LJ).

Ibid, [25] (Briggs LJ).

20 Supra n. 15, p.172.

21 Genn, "What is Civil Justice For? Reform, ADR, and Access to Justice" (2012) 24 Yale J.L. & Human. 397, p. 411.

22 Supra n.10, [15] (Dyson LJ).

23 Dunnett v Railtrack [2002] EWCA Civ 302.

24 Chris Makin, ‘Dunnett v Railtrack [2002] EWCA Civ 302’ <http://www.chrismakin.co.uk/case-law/14-dunnett-v-railtrack-2002-ewca-civ-302. html> accessed 10 January 2017.

25 Supra n. 15, p. 162.

26 Masood Ahmed, Implied Compulsory Mediation, Civil Justice Quarterly (2012), 31(2), 151-175, p. 152.

27 Supra n. 10, [9] (Dyson LJ).

28 Lord Clarke M.R., “The Future of Civil Mediation” (2008) 74 Arbitration 419, p. 422.

29 Barbara Billingsley and Masood Ahmed, Evolution, Revolution and Culture Shift: A Critical Analysis of Compulsory ADR in England and Canada, Common Law World Review (2016), 45(2), 186-213, p. 187.

30 Saskatchewan’s Queen’s Bench Act, 1998 (SS 1998, c Q-1.01), s. 42(1.1).

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more consistent and predictable in their approach to compulsory ADR as compared to their English counterparts. Courts instead exercise their discretion when it comes to exempting parties from mediation, which they are reluctant to do, signifying that the regime has been well received.31 Conclusion On whose shoulders then, does the future expansion of mediation depend? This essay has discussed the capacity of the judiciary to further the use of mediation, arguing that the effectiveness of its ability to grant ‘ADR orders’ and impose cost sanctions with the aim of encouraging mediation is limited by the discretion accorded to judges. Consequently, the author has suggested that the future expansion of mediation depends on a mandatory programme, which encompasses any judicially or legislatively prescribed participation of parties in a pre-trial dispute resolution process. Lord Clarke M.R’s aforementioned dictum suggests that the judiciary does indeed currently have within its powers the ability to routinely direct parties to mediation. However, the lack of a unified voice from judges on doing so is yet 31 32

another limitation to the further utilisation of mediation.

It seems that whilst there is a general consensus as to the fact that mediation needs to be more widely used, the English reforms towards this end has adopted a more “evolutionary” process, as opposed to a “revolutionary” one. This has most recently been reflected in a joint report September 2016 by the Ministry of Justice, which states that current reforms will aim to promote the full range of methods of dispute resolution, which may even be available online.32 For this reason, the author contends that the most effective expansion of mediation depends on a legislative endorsement of mandatory mediation. From a practical viewpoint, it must also be acknowledged that with the expansion of mediation, greater promotion of the process is also required through education and initiative by private individuals in encouraging mediation to be the first contact of dispute resolution.

Supra n. 29, p. 200.

Supra n.6, p.11.

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STIMULATING CRIMINAL LAW REFORM IN COMPLICITY The mandatory death penalty

by Kenneth Chong, University of Oxford

What moral principle demands that I take responsibility not just for my own actions, but also the actions of others?1 Most criminal law systems impute liability on secondary parties to a crime. Fault and punishment are ascribed to accessories (S) through the doctrine of derivative liability, on the ground that they are culpable by assisting and encouraging the primary offender (P), though perhaps to a lesser degree.2 Most commonwealth jurisdictions, based on the jurisprudence of the UK in the 19th century, embrace such a form of deriv-

ative liability. Yet, such a mode of imposing liability runs into complexities when S embarks on Crime A with P, and P alone commits a further Crime B in the course of carrying out Crime A. Should S be liable for P’s unilateral decision to commit Crime B? When and where should S’s culpability end? There is no clear answer, and the multitude of labels for such situations betray this underlying disarray: joint enterprise, parasitic accessorial liability3 (PAL), common purpose, “twin-crime”4 situations in common intention5 are all synonymous terms for the same

W. Wilson and D. Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform” (2015) Crim.L.R. 3 Horder, J. (2016). Ashworth's principles of criminal law. 8th, rev. ed (1st ed.). Corby: Oxford University Press.

3 J.C. Smith, "Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R. 4 Lee Chez Kee v Public Prosecutor [2008] 3 S.L.R.(R.) 447 (C.A.) 5 Section 34 of the Penal Code, Cap 224, 1985 (Rev Ed).

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situation. With S’s actions so far removed from the actual harm caused in Crime B, it is here that much academic attention has been focussed and injustice to individuals most evident.

If you and I agree to rob a bank, and in the course of the robbery you shoot a security guard who draws his pistol, should I be liable for your murder? Academics have given a range of answers; it depends on whether you foresaw,6 endorsed7 or intended8 this further consequence. The crux of the issue is in imputing liability for an act that I had no control over, and did not agree to. In fact, I may have vehemently objected to it. Regardless, most countries (Canada, UK, Hong Kong and Singapore, among others) pitch liability at the level of foresight. As long as I foresee that P might commit the murder, I will be liable for it as though I was the primary offender. This low mens rea requirement is thus the “wrong turn” that the court in Jogee sought to remedy. By implementing a higher mens rea requirement of intention, Jogee abolished PAL, a decision remarkably similar to the Singapore case in Vijay.9 This article will seek to defend both these decisions, and demonstrate that the previous doctrine of PAL is grounded on a shaky normative basis. The Australian and Hong Kong courts should have followed the Jogee decision, and minimise such injustice in complicity; perhaps only fleshed out through the harshness of the mandatory death penalty, which in turn acts as a catalyst for criminal law reform.

Two histories Currently, the majority of common law jurisdictions use the recklessness theory of liability for joint enterprise.10 S is liable because he knowingly risks a significant possibility of death when he commits himself to the criminal enterprise.11 In England, the law of complicity is derived from a statutory source, namely Section 8 of the Accessories and Abettors Act 1861: anyone who “shall aid, abet, counsel or procure the commission of any indictable offence ... shall be liable to be tried, indicted and punished as a principal offender”. However, the fundamental principle that section 8 embodies is a common

law principle, and aiding, abetting, counselling or procuring are just technical terms.12 From a very early point the criminal law recognised that a person may be convicted of committing a crime that was in fact committed by someone else.13 Up till Jogee, the modern law of joint enterprise was set out by the Privy Council decision of Chan Wing-Siu14 in 1985. The courts said it was enough for S to foresee that P might use a knife with intent to kill or cause grievous bodily harm (GBH). The threshold for liability is too low. If S1 sells P a kitchen knife, foreseeing that there are 99 things P might do which are lawful (chopping food) and 1 which is unlawful (murder), and P goes on to commit murder, S1 will be liable for the same mandatory life sentence; the law does not distinguish this from the scenario in which S2 sells P a gun (where the 99 things P might do are most likely to be unlawful). It is doubtful that S1 is as culpable as S2, yet the law is indiscriminate in this regard. Thus the Jogee ruling that the law “took a wrong turn” in Chan Wing-Siu is normative correct: the UKSC re-instated a higher mens rea requirement of intention and overturned three decades of case-law. Both S1 and S2 will no longer be liable for P’s further crime, and in effect the UKSC abolished PAL. While Commonwealth jurisdictions scrambled to get to grips with the new UKSC ruling, one of the few countries unaffected by Jogee is Singapore. For Singapore, the UKSC decision is merely persuasive material, though perhaps highly influential. However, the main reason for the unfazed jurisprudence in Singapore is that the “intention” requirement had already been re-instated 6 years ago in 2010, after a constitutionally important decision in Vijay. The story is very much similar: the original position in the mid-19th century adopted a mens rea requirement of “intention”, subsequently loosened to a mixture of foresight and strict liability, leading to pervasive injustice within the criminal law system especially with the predominance of the death penalty for murder.

An awareness of this issue led the courts to tighten the mens rea requirement to subjective knowledge in Lee Chez Kee15 and subsequently to “intention” in Vijay.

Virgo, “Making sense of accessorial liability” (2006) 6 Archbold News 6 Krebs, Mens rea in joint enterprise: a role for endorsement? [2015] CLJ 480 8 Supra n. 1 9 Daniel Vijay s/o Katherasan v. PP [2010] 4 S.L.R. 1119 (C.A.) 10 M Hor, “Common Intention and the Enterprise of Constructing Criminal Liability” [1999] Sing.J.L.S. 494 11 In England, Powell and English [1998] Crim. L.R. 48; in Australia. McAuliffe (1995) 69 ALJR621; in South Africa. Safatsa (1988) 1 SA 868 (A) 12 Supra n. 3 13 Pollock and Maitland, History of English Law, II, 509, K. J. M. Smith, A Modern Treatise on the Law of Criminal Complicity (1991) 14 Chan Wing Siu [1985] A.C. 168 15 Supra n.4 6 7

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The Singaporean law on complicity is set out in the Penal Code modelled upon the Indian Penal Code by Lord Macaulay16 enacted in 1860. Section 34 of the Penal Code provides the equivalency of section 8 of the Accessories and Abettors Act 1861: “When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone”.17 Yet, the difficulty for Singapore is in determining the legislative intent behind particular provisions. The prevailing doctrines at the time of the enactment were hard to pin down; the Indian Penal Code was commissioned in 1833 but only enacted in 1861, and the substantial period of time taken, alongside the changing membership of the Law Commission, made it hard to track the original legislative intent. Furthermore, the Indian Law Commissioners who finalised Lord Macaulay’s draft Penal Code were English judges (sitting in Indian courts) who were steeped in the common law tradition. Unsurprisingly, there was a certain amount of openly expressed hostility towards the codified document and a continued influence by both by English common law and the criminal law reform activity going on in England.18 With such developments over a long span of time, it is virtually impossible to determine the legislative intent of the Penal Code.

The corollary is that Section 34 suffered from unnecessary intrusion from the common law, both in terms of the 1870 amendment and subsequent interpretation.19 The common law doctrine of common purpose in the mid-nineteenth century was based on strict liability whenever the criminal act was in furtherance of the common intention of the group, or “collective felony-murder”.20 Authoritative writers from Foster in the 18th century to Russell and Stephen in the 19th century assert the historic English position where S was liable for the commission of a felony which he incited or encouraged, and also for the objectively probable further crimes of P, regardless of S’s foresight.21 Lord Macaulay

completely rejected this in the Code. He was unconvinced by the rationale for collective felony-murder: it was punishment grossly disproportionate to fault, and had little utilitarian benefit.22 He argues that if the aim is to deter the underlying felony, then the penalty for that felony should be increased. Little purpose is served by the capricious imputation of murder on all members of the group regardless of their contribution. Interestingly, the common law also discarded the concept of “collective felony-murder” by 1866.23 However, the damage has been done. Section 34 has been notorious among Singaporean academics due to its frequent use in murder charges and the unsatisfactory interpretation of the provision. Firstly, Section 34 is silent on the actus reus and mens rea requirements24 of secondary parties. Courts have been forced to try and work out exactly what is required: Does S need to share P’s intention with respect to the secondary crime, or is it sufficient if S foresees the possibility of the secondary crime, or can criminal liability be strict as long as the secondary crime was in furtherance of the primary crime?25 Michael Hor highlighted the total disarray in this area: the mens rea requirements have ranged from strict liability to actual intention, no doubt due to the influences of the common law. Where Section 34 is used to support a charge of murder, which carries the mandatory death sentence, the magnitude of this problem and the potential injustice of the law are glaringly obvious. With the prevalence of murder charges in Section 34 and its mens rea requirements left to the hands of the judges, in reality they wield a wide discretion to impose the mandatory death penalty onto secondary parties who are only minimally culpable.

Early authorities in Singapore suggested that nothing less than intention (or conditional intention) with respect to the secondary crime was required. This was the Baraendra test:26 see Banka,27 Chhui Yi.28 However, the

Macaulay, Introductory Report on the Indian Penal Code in The Works of Lord Macaulay (1903) Cap 224, 1985 (Rev Ed) 18 D Skuy, “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s legal System in the Nineteenth Century (1998) 32 Modern Asian Studies 513 19 K. Amirthalingam, "Clarifying Common Intention and Interpreting Section 34: Should There be a Threshold of Blame-worthiness for the Death Penalty?", (2008) Sing. J.L.S. 435 20 R v Bowen (1841) Car & M 149; R v Betts and Ridley (1930) 144 LT 526 21 Supra n. 3 22 Supra n.16 23 KJM Smith, A Modern Treatise on the Law of Criminal Complicity (1991) 24 Supra n. 19 25 PP v Tan Lay Heong [1996] 2 SLR 150; Too Yin Sheong [1998] SGHC 286; Asogan Ramesh v PP [1998] 1 SLR 286.

26 Baraendra Kumar Ghosh [1925] AIR PC I 27 R v Vincent Banka [1936] MLJ 53 28 R v Chhui Yi [1936] MLJ 142 16 17

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“intention” requirement was thrown into abeyance by a misreading of Mimi Wong:29 the Court of Appeal said that the intention of the actual doer must be distinguished from the common intention of all, and the two intentions need not be the same, but they must be “consistent”.

The level of mens rea thus turns on the word “consistent”, which is a model of semantic obscurity: it could mean common intenders actually knowing that one of them may kill (recklessness), or reasonable foresight (negligence), or even that the killing was merely causally connected to the commonly intended crime, regardless of their mens rea (strict liability).30 Subsequent case-law adopted the “putative Mimi Wong” principle31 to impute liability to S who does not need to have a common intention with P to be liable for his additional Crime B, as long as Crime B is consistent with and in furtherance of the commonly intended Crime A.

The breadth of this principle led the courts to adopt an equivalent of the fundamental difference rule32 in Syed Abdul Aziz33 and Too Yin Sheong,34 on the basis that there was insufficient evidence to prove that S knew P had a weapon. In England, this was the ill-defined and arbitrary defence where S would not be liable for P’s Crime B if his actions were of a “fundamentally different” sort. What actions constituted ‘fundamentally different’ was not clear:35 In Powell,36 an action is distinguished as “fundamentally different” based on the lethality of the weapon used and the nature of the act; the focus shifted to the lethality of the weapon in Rahman,37 when the House of Lords said that P’s “further intent” to cause death rather than GBH does not constitute a “fundamental difference”. In the following case of Mendez,38 Toulson LJ admitted that “there is no bright line test” for “fundamental difference”. This uncertainty in both English

Mimi Wong v PP [1972] 2 MU 75 Supra n.10 31 Supra n.9, para. 35 32 R v Powell and Daniels; English [1999] 1 AC 1 33 Syed Abdul Aziz [1993] 3 SLR 534 34 Too Yin Sheong [1999] 1 SLR 682 35 Supra n.1; Ormerod notes that the courts have not settled on a clear, consistent and fair rule of application despite two visits to the House of Lords on the point.

36 Supra n.32 37 R v Rahman [2009] 1 AC 129 38 R v Mendez and Thompson [2011] Q.B. 876 29 30

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and Singaporean law is clearly unsatisfactory, especially when PAL usually concerns murder cases giving rise to mandatory life sentences or death penalties.

Just as the inconsistency in “fundamental differences” no doubt influenced the English decision in Jogee, the unpredictability in Singaporean case-law led to constitutional change in Lee Chez Kee: Lee authoritatively stated that the mens rea for Section 34 is subjective knowledge of the likelihood that P may commit Crime B, as opposed to the common law standard of foresight or contemplation of possibility.39 Knowledge of likelihood is a slightly more stringent standard of culpability:40 I can foresee events even when I do not actually know all the facts, but knowledge is based on a justified true belief, which requires specific and convincing evidence. However, Lee Chez Kee raised a further subsidiary question: “how specific must be the secondary offender’s subjective knowledge of the collateral criminal act which might likely be committed by the actual doer be”?41 The lack of a clear answer led the court in Daniel Vijay to declare that Section 34 still remained a “troubling provision”.42 The court held that it was unfair to hold S constructively liable for an offence arising from P’s Crime B if S does not have the intention to commit Crime B. They re-adopted the original Baraendra test that the common intention has to include the intention to commit the further crime.

Kho Jabing43 confirmed this jurisprudence: knowledge is not intention, although it is a basis from which intention could be inferred. Under this re-interpretation of the law, Section 34 inclines towards Michael Hor’s view that Section 34 has nothing to do with unintended consequences, only with circumstances where things go according to plan.44 This decision, alongside Jogee, is normatively correct.

The foresight tests in Mimi Wong and Chan Wing-Siu are based on shaky normative doctrines. Lee Chez Kee itself quotes Lord Hutton from Powell, who recognised the “anomaly” where the mens rea requirement for S is lower than that of P who commits the act; it amounts to a form of constructive liability.45 Lord Mustill echoes this

sentiment when he points out the disconnect between culpability and liability, especially when S foresees that P may go too far, sincerely wishes that he will not, and yet goes ahead because he hopes for the best.46 Our moral instincts will point us towards a finding that S’s conduct is less culpable than that of P, but an extended concept of PAL based on foresight cannot accommodate such gradations in culpability. Some academics have staunchly defended the foresight test: Simester justifies the doctrine by arguing that S changes his normative position when he deliberately chooses to join the common purpose. He argues that S’s association means that there should be a form of collective responsibility, as “execution of the common purpose--including its foreseen attendant risks--is a package deal”.47 Yet, why should the normative yardsticks shift and S be more culpable for Crime B just because he has chosen to embark on Crime A? Ormerod’s retort makes logical sense: he argues that autonomy is a defining feature underpinning the criminal law and P is an autonomous agent, so S should be punished without fictionalising his involvement in a crime chosen unilaterally by P which was no part of the common purpose.48 There are other means to punish S without leading to unfairness in terms of labelling and proportionality; convicting him of manslaughter instead of murder (wherein the real wrong is to kill with malice aforethought) will sidestep these issues. A murderer, with a mandatory life sentence, is an ill-fitting label for S who is liable despite not having chosen to kill or even to cause serious injury.

The role of the death penalty As the previous discussion on Jogee and Vijay has pointed out, both the English and Singaporean courts have renounced their previous position on PAL and the use of the foresight test. Yet, Singapore has been faster to recognise this injustice: this may be due to the use of the mandatory death penalty, which acutely highlights the disproportionality between fault and punishment.

Culpability should be a matter of gradation, especially in jurisdictions with mandatory sentences, but the focus of PAL on reasons of public policy and deterrence of

Supra n.19 G. Williams, Textbook of Criminal law (1978) 300 41 Supra n.4 42 S. Chen, “The Final Twist in Common Intention” (2011) Sing. J.L.S. 237 43 Kho Jabing v PP [2011] SGCA 24 44 Supra n. 42 45 Supra n.1 46 Supra n.32 47 Andrew Simester, "The Mental Element in Complicity", (2006) 122 L.Q.R. 578 48 Supra n.1 39 40

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group crime infringes on such individual criminal responsibility. In the UK, Lord Steyn and Lord Hutton expressly recognised the Chang Wing-Siu principle to be based on reasons of public policy rather than logic,49 while in Hong Kong, courts rejected Jogee in Chan Kam Shing50 due to policy reasons, fearing that the Jogee doctrine would lead to a substantial number of appeals and put Hong Kong’s over-stretched legal system under more strain.

Clare Montgomery QC attributes this decision to wider public policy and social concerns, citing the real threat in Hong Kong of organised crime syndicates.51 These decisions underline the tension between deterrence and individual culpability, but the presence of harsh mandatory sentences have led the courts to favour punishment only on the basis of individual responsibility. In the Australian case Clayton,52 the mandatory sentence compelled Kirby J to famously dissent that it was necessary “to restore greater concurrence between moral culpability and criminal responsibility…” and to require a higher form of mens rea for extended common purpose.

This echoes Sornarajah’s reservation that “there will always be the moral reluctance to make an individual serve the social interest at the cost of his life [in capital cases]”.53 In such cases, relying on prosecutorial discretion to avoid the potential injustice of the mandatory death penalty is inadequate. This may be the very concern, backed by a moral intuitiveness, that led to Singapore’ willingness - twice - to carry out major constitutional changes to the interpretation of Section 34.

Conclusion Jogee and Vijay were right: PAL should be scrapped.

Many notable commentators have argued for a middle ground between intention to commit the collateral offence and (de facto) strict liability,54 for a judicial balance between human rights considerations and the promotion of general deterrence.55 However, the caselaw across multiple jurisdictions have demonstrated that courts tend to extend the net of criminal liability beyond what was originally intended, over-criminalising and creating injustice within the justice system. Rather than relying on doctrines of PAL, other existing backup charges should be used: In Singapore, section 111 and section 113 of the Penal Code covers cases of rioting, mass anti-social movements, violent robbery; in UK and elsewhere, secondary parties are always liable for assisting and encouraging under the Serious Crimes Act 2007, and the UKSC has also suggested in Jogee that S can be liable for manslaughter in a typical robbery-murder case (above). Instead of relying on an extended theory of liability derived from P’s actions, it makes more sense to criminalise organised crime where liability for each individual is affixed to his own actions. S will always be guilty of the primary Crime A, and liable under statute for assisting Crime B, which itself carries a penalty and answers the need for deterrence and retribution.to his own actions.

Supra n.32 HKSAR v Chan Kam Shing FACC 5/2016 51 Clare Montgomery QC, lecture for the University of Hong Kong and Boase Cohen & Collins Lecture Series in Criminal Law 52 R v Clayton [2006] HCA 58 53 M. Sornarajah, "Common Intention and Murder Under the Penal Codes", (1995) Sing. J.L.S. 29 54 Gillian Douglas; Joint Liability in the Penal Code", (1983) 25 Mal. L.R. 259 55 Supra n.54 49 50

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REGULATING EUTHANASIA WITH THE CRIMINAL LAW A comparative analysis on how euthanasia is regulated in England, India and Singapore

by Foo Tze Ern Darren, University College London

In most parts of the world, euthanasia is illegal.1 In Singapore, we criminalise euthanasia under the existing provisions as set out in the Penal Code.

This article seeks to comparatively analyse Singapore’s legal approach on the issue of euthanasia in comparison to how euthanasia is regulated in England and in India, to glean insights for Singapore’s existing criminal laws criminalising the regulation of euthanasia.

The choice to compare Singapore’s legal approach with that of England and India is a practical one. Similar to Singapore, the criminal law that operates in England

and India were not initially drafted to address the issue of euthanasia. Yet, cases concerning the issue of euthanasia were, as a default, addressed by the criminal justice system. In addition, although the case law in India and England are separate and do not set precedence for Singapore’s common law, their influence can still be persuasive. This is because, firstly, most of Singapore’s Penal Code was adapted from India and both have very similar colonial and legal histories,2 and secondly, English law is still seen as the “parent”3 system to both Singapore’s and India’s legal systems.

Tushar Kumar Biswas and Arnab Sengupta, “Euthanasia And Its Legality And Legitimacy From Indian And International Human Rights Perspectives” Asia-Pacific Journal on Human Rights and the Law (2) (2010) 18-30 2 Stanley Yeo and Toh Puay San, “Decriminalising Physician-Assisted Suicide in Singapore” (2010) 22 SAcLJ (“Decriminalising PAS in Singapore”) at 384 3 Esin Örücü, ‘A General View of ‘Legal Families’ and of ‘Mixing Systems’ in Esin Örücü and David Nelken (eds), Comparative Law – A Handbook (Hart Publishing, 2007), pp. 340-376 at 346 1

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Definitions This article defines euthanasia as the termination of a patient’s life through “a deliberate act by a doctor to terminate the life of a patient, for example, by the administration of a lethal injection”, at the expressed consent of the patient.4 This definition therefore covers Physician-Assisted Suicide (PAS), but it must be distinguished from assisted suicide. Unlike euthanasia where it is the doctor who acts in the termination of the patient’s life, assisted suicide is where the patient performs the act of terminating his or her own life directly.

Assisted suicide, therefore, falls outside of this scope.

As a matter of clarification, it must be highlighted that the terms “decriminalisation” and “legalisation” carry very different meanings, and should not be used synonymously in the legal context. For example, decriminalising euthanasia would only mean that euthanasia is no longer a criminal act, not a “legal right”. The “legal right” to conduct euthanasia can only be created after legislation.5 Description of Comparing Legal Systems In order to deliver an accurate representation of the laws in the three countries of comparison, this article will adopt a “broad and functional”6 consideration of their legal systems. Since the criminal laws of all three countries were drafted without euthanasia in mind, this article will focus on the causative choices made by legal actors including judges, lawyers, and the legal academics. (a) The relevant criminal provisions In all of the three countries, euthanasia is criminalised by pre-existing laws on criminal homicide and abetment of suicide.

England criminalises homicide in Section 4 of the Homicide Act 1957 and the abetment of suicide in Section 2(1) of the Suicide Act 1961. India criminalised homicide in Section 300 of the Indian Penal Code (“IPC”) and the abetment of suicide in Section 306 of the IPC. Similarly, Singapore criminalised homicide in Section 300 of the Singapore Penal Code (“SPC”) and the abetment of suicide in Section 306 of the SPC. However, each country

has varying approaches to criminalising suicide.

In England, Section 1 of the Suicide Act 1961 grants criminal immunity to the person who commits suicide. In India, while Section 309 of the IPC criminalises attempts to commit suicide, the Government has decided, in December 2014, to repeal Section 309 and is currently in the process of drafting an Amendment Bill.7 In the meantime, the Mental Healthcare Bill was recently passed in August 2016, which seeks to limit the effect of Section 309 by providing the presumption that any person who attempts to commit suicide suffers from mental illness and shall not be liable for punishment. This Bill does not repeal Section 309 of the IPC, instead it merely provides the presumption of mental illness.

On the other hand, suicide continues to be criminalised in Singapore, under Section 309 of the SPC. Note that while the SPC provisions parallel those in the IPC, Singapore is not in the process of repealing Section 309 and decriminalising suicide, unlike India. (b) The courts’ application of the provisions Despite the relevant criminal provisions that criminalise euthanasia, English and Indian lawyers, in their submissions to the courts, have two strands of arguments.

First, they have argued that the criminal provisions do not apply in the case of euthanasia. Second, they have argued that although these criminal provisions prima facie apply, they should be set aside because it contradicts the “right to die” implied from the Constitution or other legislation.

In England, lawyers have argued that euthanasia should be excluded from the scope of the relevant criminal provisions. This was observed in the case of R (Nicklinson) v Ministry of Justice,8 lawyers have challenged that the ‘blanket ban’ on assisting suicide is discriminatory and arbitrary. However, these arguments were dismissed by the UK Supreme Court. It was held that the ‘blanket ban’ on assisted suicide was necessary and valid because the criminal law should be applied generally to protect those who need protection.

EAPC Ethics Task Force, “Euthanasia and physician-assisted suicide: a view” Palliative Medicine 2003; 17: 97-101 Andres Ollero, “Euthanasia and Multiculturalism” in Autonomy and Human Rights in Healthcare: An International Perspective (D.N. Weisstub and G.D. Pintos eds) (Springer, 2008) ch 15 (“Euthanasia and Multiculturalism”) at p210 6 David Gerber, ‘System Dynamics: Toward a Language of Comparative Law’ (1998) 46 American Journal of Comparative Law 728 (“David Gerber”) 7 Press Bureau of India, Ministry of Home Affairs, Government of India. “ (24 February 2015) < http://pib.nic.in/newsite/PrintRelease.aspx?relid=115721> (accessed 10 October 2015). (“Press Bureau of India”) 8 [2014] UKSC 38 (“(SC) R v Ministry of Justice”) at [218], [220] 4 5

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Alternatively, English and Indian lawyers have resorted to demonstrating that the “right to die” is a fundamental constitutional right to challenge the effect of these provisions. In the case of Aruna Shanbaug v Union of India (“Aruna”),9 the Indian lawyers argued that the “right to live” as protected by Article 21 of the Constitution10 should also logically entail the liberty to for one to die.

As such, they submitted that the Sections 309 and 306 of the IPC were unconstitutional and cannot be applied to the issue of euthanasia. However, the Supreme Court upheld its decision in the previous case of Gian Kaur v State of Punjab,11 to affirm that the “right to die” is not a constitutional right at all.

In England, lawyers attempted to establish the “right to die” by referencing Section 1 of the Suicide Act of 1961 which grants criminal immunity to the person who committed suicide. They submitted that Section 1 of the Suicide Act implied a liberty for one to die. However, in the case of R v Ministry of Justice,12 the Court of Appeal had rejected this argument on the basis that euthanasia undermines the “sanctity of life”. The principle of “sanctity of life” had been affirmed by common law, in cases such as Airedale v Bland,13 and also entrenched within Article 2 of the European Convention of Human Rights.14 The Court of Appeal in Airedale v Bland held that while the effect of Section 1 of the Suicide Act 1961 is to allow a person to commit suicide, it does not create the right for another person to violate the sanctity of his life.

However, unlike England and India, Singapore has yet to have the issue of euthanasia adjudicated in the courts.

While there are several differences on the criminalisation of suicide, all three countries have relatively similar provisions to criminalise homicide and abetment of suicide. In addition, Article 9 of the Singapore Constitution parallels that of Article 21 of the Indian Constitution and Article 2 of the European Convention of Human Rights,

to grant individuals their right to live. Academics have proposed that,15 similar to England and India, Singapore would most likely uphold the validity of the criminal provisions as set out in the SPC. However, until the issue of euthanasia reaches Singapore’s courts, the Singapore’s courts approach remains to be seen. (c) Procedural context In all three countries, procedural law serves to address the inequities and shortcomings of substantive law,16 where the public prosecution has full discretion to decide whether or not to prosecute in certain cases.

In India, the Supreme Court, in the case of Shiv Nandan Paswan v State of Bihar & Others,17 held that the Public Prosecutor has a broad discretion to prosecute in order to “further the broad ends of public justice, public order and peace”. In Singapore, Article 35(8) of the Constitution grants a wide discretion to the Attorney-General to “institute, conduct or discontinue any proceedings for a any offence”. In England, this procedural discretion is set out in Section 2(4) of the Suicide Act 1961, and applied in the case of R (Purdy) v DPP.18 The Supreme Court sought to clarify the factors to be taken into consideration when determining is a prosecution for euthanasia would be in the public interest and whether it should be considered. (d) Beyond the criminal rules It seems that any attempts to regulate euthanasia outside criminal law, by implementing other legal mechanisms, have been met with few and limited success in all three countries.

In England, several bills such as the “Assisted Dying Bill”, tabled by Lord Falconer in 2014, and a similar bill introduced by Member of Parliament (MP) Rob Marris in 2015,19 had consistently been struck down in Parlia-

AIR 2011 SC 1290 at [4] Article 21 of the Indian Constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

11 AIR 1996 SC 1257 12 [2013] EWCA Civ 961 (“(CA) Ministry of Justice”) at [55] 13 [1993] AC 789 at [831] 14 Article 2 of the European Convention on Human Rights (ECHR), “the Right to Life” states that “Everyone’s right to life shall be protected by law.

No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. This is incorporated within Schedule 1 of the Human Rights Act 1998 c. 42.

15 Decriminalising PAS in Singapore, supra n 2, at [10] 16 Marc Groenhuijsen, “Euthanasia and the Criminal Justice System” (December 2007) EJCL 11.3 (“Euthanasia and the Criminal Justice System”) at 18 17 AIR 1983 SC 1994 18 [2010] 1 AC 345 19 See James Gallagher & Philippa Roxby, “Assisted Dying Bill: MPs reject ‘right to die’ law”, BBC News (11 September 2015) http://www.bbc.com/ news/health-34208624 (accessed 10 October 2015) 9

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ment, with 74% of the MPs rejecting the 2015 bill. Compared to a similar bill tabled in 1997 where 72% of the MPs rejected the bill, clearly there has been little shift in opinion over the past decade.

In India, while the Mental Health Bill, passed in August 2016, might seem to be an attempt to regulate of the issue of suicide outside of India’s criminal law system, it does little to regulate the issue of euthanasia. The Law Commission of India has continued to emphasise the need for euthanasia and PAS to continue to be regulated by the criminal law.20 While the Mental Health Bill, passed in August 2016, might seem to be an attempt to regulate of the issue of suicide outside of India’s criminal law system, it does little to regulate the issue of euthanasia.

As a result, the regulation of euthanasia in both England and India has been centred primarily in the countries’ criminal justice systems. (e) Political Climate The decriminalisation of euthanasia would have to entail a shift of control from the criminal justice system to other aspects of governance.21 Especially when dealing with euthanasia, a morally-contentious issue, its decriminalisation must be met with careful consideration of the political culture and climate of the country.

In England, the political culture of liberalism has an important influence on the country’s legal system.22 Political liberalism upholds personal autonomy and freedom within the confines of a “principled commitment to values pluralism”.23 It also plays a significant role in shaping the public’s attitude towards the law, where they develop an expectation for the law to protect their individual liberties and rights.24 Under this political climate, decriminalising euthanasia will undermine the pluralist values of the society by

displacing the status quo of a “blanker ban” of assisted suicide and recognising a general ‘right to die’. As any substantive law would enforce a dominant morality,25 decriminalising euthanasia will displace the balance between allowing maximum freedom and protection of the vulnerable lowest common denominator.

In India, however, the legal system is limited by a political climate of corruption, instead of political ideology.

In the case of Aruna, the Supreme Court noted the “unfortunate low level of ethical standards to which (the) society has descended … and the rampant corruption”.26 The Supreme Court considered that the society had not “matured enough to accept the execution of an Act of Euthanasia”, and a transfer of control from the courts to a regulatory body will open up opportunities for misuse, and may even possibly be a precursor to murder.27 In both countries, their political climates have significantly shaped how their legal actors have considered the issue of euthanasia in their legal systems. In England, the main difficulty lies in striking a balance between allowing maximum freedom and protecting the vulnerable lowest common denominator, amidst the pluralist nature of the system. Whereas in India, the main problem is with institutional enforcement, against the backdrop of corruption.

Similar to England, some of Singapore’s possible main concerns would be in “balancing the individual’s rights against the social value of the law as a normative prescription … by seeking an optimising equilibrium”.28 This communitarian approach was identified in the case of PP v Kwong Kok Hing,29 to be a core component in Singapore’s criminal legal system. It was also relevantly applied in consideration of the controversial Advance Medical Directive Bill30 when it was passed in 1996. However, unlike India, the strength of Singapore’s regulatory bodies and the low likelihood of corruption should suggest

This approach has been consistent from its 196th Report till its 241st Report. See Law Commission of India, Government of India, Passive Euthanasia—A Relook (August 2012) (Chairman: Justice P. V. Reddi) 21 Francis Pakes, “The legalisation of euthanasia and assisted suicide: A tale of two scenarios” (2005) IJSL 33 at 71 22 John Coggon, “Assisted Dying And The Context Of Debate: ‘Medical Law’ Versus ‘End-Of-Life Law’” Medical Law Review Winter 2010; 18 (“Medical Law Versus End of Life Law”) 541.

23 Ibid, at 543.

24 Fiona Randall, “Euthanasia: From the UK” Palliative Medicine 2003; 17: 116. “[A] consideration of issues of harm and benefit for the whole community, with some consideration of individuals’ rights and others’ duties” 25 Medical Law Versus End of Life Law, supra n 40, at 542 26 Aruna, supra n 17, at [104] 27 S Vijayram Karunashraya, “Euthanasia: From India” Palliative Medicine 2003; 17: 148 (“Euthanasia: From India”).

28 Thio Li-Ann, “The ‘Rule of Law’ Beyond the Rules of Law in Singapore” Sing J.L.S. [2012] 269-297 at 278.

29 [2008] 2 SLR(R) 684 at [17].

30 Advance Medical Directive Act (Cap 4A, 1997 Rev Ed). See also Report of the Select Committee on the Advance Medical Directive Bill (Bill No 40/95) (Parl 1 of 1996, 11 March 1996) 20

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that Singapore should face little difficulty in the institutional enforcement of controversial legislation.

An aspect where Singapore can be distinguished from England and India, is its paternalistic legal culture. In Singapore, legislations are often used to shape the collective consciousness of its citizens.31 Hence, in order to prevent normalising the procedure of euthanasia,32 it seems likely that Singapore would rather choose to maintain its status quo than to decimalise euthanasia.

While Singapore uses the criminal law to promote a standard of conduct, England uses the nature of its criminal law to impose a dominant morality, and India relies on its pre-existing criminal systems to regulate conduct and behaviour. Despite the subtle differences in reasoning and purpose, the practical result of criminalising euthanasia is still the same.

India a few landmark cases, and England a substantial number. This seems to suggest that a higher reliance on the criminal legal system for the regulation of euthanasia will result in a stronger inclination to shift its control over to other regulatory systems.

There is no requirement for Singapore to decriminalise euthanasia, especially at this point in time. Singapore’s current criminal laws apply strictly to euthanasia, and even in the unlikely event of an exceptional case involving euthanasia, the prosecutorial discretion of the Attorney-General serves as a relevant safety net to regulate this issue.

Conclusion As Singapore’s Chief Justice Sundaresh Menon cautioned:33 “[Even] though we must reserve a place in our collective consciousness for universal truths and values, we must also remember that until they find expression in our own system of law, they are both unrealised and incomplete”.

Even though it seems, prima facie, that there are many similarities between the criminal laws in Singapore and those in England and India, in reality, we find that there are “little universal truths and values”. Each aspect of their criminal law system has become “so intimately annexed to the socio-political-culture structure”34 of the domestic jurisdiction, that it would be impossible to apply their reasoning without a consideration to their domestic legal system.

Hence, all three countries are at most similar in form but different in substance. Each country has its own distinct set of priorities and considerations to their political climate. As such, they rely on their respective criminal laws to regulate the issue of euthanasia to different degrees.

Singapore has almost no cases regulating euthanasia,

See eg Housing and Development Act (Cap 129, 2004 Rev Ed) Euthanasia and Multiculturalism, supra n 11, at p 208: “No matter what the moral basis for such interventions is, their legal impact on the guidelines for social behaviour is obvious.”

33 Sundaresh Menon, “Euthanasia: a matter of life or death?” Singapore Med J 2013; 54(3): 116-128 34 Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1-27 31 32

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UNCOVERING THE HISTORY OF SUB JUDICE CONTEMPT The New Battle for the Public Sphere

by Joel Wong En Jie, University College London

The Administration of Justice (Protection) Bill was passed on 15th August last year with 72 PAP MPs voting in favour of the bill and all 9 WP MPs and NCMPs voting against. The Bill was drafted with the intention of stating and consolidating the law of contempt of court and to “define the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto”. In particular, the codification of the law of sub judice contempt in clause 3(b) of the Act has drawn considerable attention and debate.

In this article I trace the historical origins of the law sub judice contempt in the UK, and argue that the sub judice rule is in fact rooted in certain specific historical circumstances that pivot around the relationship between the English courts and the newly emerging mass media in the 18th century. Following, Schneebaum & Lavi’s1 analysis I challenge the most common criticism of the sub judice rule in the Singaporean context, namely that sub judice, which is “premised on juror frailty”,2 has no relevance to a bench trial jurisdiction like Singapore.3 I propose that such criticism is based on the common misconception

that sub judice is rooted solely in notions of obstructions of the proper administration justice, rather than contempt of the authority and dignity of the courts themselves.

In the second section I argue that a more germane criticism of the sub judice rule would be to first conceptualize sub judice as a common law doctrine with which English courts sought to establish their authority in the public sphere vis-à-vis the emerging mass media at a time where courts were only just gaining authority and legitimacy independently of the Crown. We may then draw viable parallels between the rise of the British press in the 18th century and the rise of Internet news media and social media platforms today to better understand the political rationales for the new legislation, and to criticise it on that basis.

The Origins of Sub Judice Contempt in English Law The term “sub judice” is Latin for “under judgment”, and is used to indicate that a certain case or matter is presently under trial by a court of law. In the modern context,

¹ Galia Schneebaum & Shai J. Lavi, The Riddle of Sub Judice and the Modern Law of Contempt, Critical Analysis of Law (2015).

2 Sui Yi Siong, Sub Judice contempt of court in Singapore and the Way Forward, Singapore Law Review, Vol. 32, pp. 145.

3 Singapore abolished jury trials in 1969.

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sub judice contempt is most often used to prevent “trails by media”, and to prevent publication of material that may be prejudicial to a defendant whilst his/her court proceedings are pending. Sub judice contempt has been codified in Singaporean law in section 3(1)(b) of the Administration of Justice (Protection) Act, which states “any person who intentionally publishes any matter that (i) prejudges an issue in a court proceeding that is pending and such prejudgment prejudices, interferes with, or poses a real risk of prejudice to or interference with, the course of any court proceeding that is pending; or (ii) otherwise prejudices, interferes with, or poses a real risk of prejudice to or interference with, the course of any court proceeding that is pending, commits a contempt of court”.

Before the 18th century, contempt of court laws were embedded in the power structures of the English monarchy: since the courts were an emanation of the Crown, being in contempt of court meant violating the honour and dignity of the Crown and its majesty. In the 17th century, the Parliament of England and its armed forces overthrew the monarchy, and in 1660 the monarchy was restored, albeit in a limited form, and has been moderated by an independent Parliament ever since.

As a result, the legitimacy of the English courts was no longer rooted in the authority of Kings and Queens, but rather (with separation of powers as a foundational constitutional principle) on the authority of the Judiciary itself as an independent branch of government. On this reading sub judice may be conceptualized as part of a wider historical shift from contempt as protecting the honour of the court as an emanation of the Crown, to contempt as protecting fair judicial process.4 Indeed the language of Act in question (“The Administration of Justice (Protection) Act”) affirms that Singaporean law conforms to this orthodox historical narrative, i.e. contempt of court laws in Singapore do not arise out of the need to protect the dignity of any higher political or monarchical authority, but are derived from principles of due process and the necessity of maintaining an image of the Judiciary as objective and neutral.

However, it is at this point where Singaporean commentators interject: since jury trials are not integral to due process in Singapore does the existence of sub judice cast doubt on the impartiality of judges themselves?

As one pundit put it: “Our judges and judicial officers are highly-trained individuals who have expertise and legal knowledge to siphon relevant material from prejudicial material. A professional judge is expected to be unaffected by prejudicial material, given the benefit of their knowledge and professional experience. It was for this very reason that professional judges were favoured over jury trials by the Government in Singapore’s early years.”5 If correct, this line of criticism reveals a worrying paradox in the sub judice doctrine, namely that allowing sub judice to have a place in Singapore’s contempt of court laws necessarily includes the admission that Singaporean judges are susceptible to external influence by the media or other platforms, but this is something that their office as judges of the court must surely reject. (a) The St James’s Evening Post case Whilst such an objection is appealing, I submit that a more precise historical understanding of sub judice indicates that it is in fact not the most robust criticism of the rule.

In 1742, the St James’s Evening Post case6 became the first English case to offer a rationale for the sub judice doctrine. Lord Hardwicke, in rejecting the defendant newspaper’s claim that certain articles it published accusing parties and witnesses in a pending trial with perjury was merely a question of libel, accepted that it was a case of contempt by publication (later to be known as sub judice contempt). In his speech Lord Hardwicke provided three categories of contempt of court: “There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard.”7

Schneebaum & Lavi, p. 184: “Diachronically, it [sub judice] has been understood as part of a historical shift from contempt understood as protecting the honor of the court to contempt as protect- ing a fair judicial process and preventing obstruction of justice.”

5 Future of Singapre, Sub Judice contempt has no place in Our Courts, The Independent (July 15, 2016), http://www.theindependent.sg/sub-judicecontempt-has-no-place-in-our-courts/ 6 Roach v. Garvan (1742) 2 Atk. 469, 26 Eng. Rep. 683 (Ct. of Chancery) (St. James’s Evening Post case) 7 Ibid, p. 470 4

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There are two observations to be made about this case that are useful for our purposes. Firstly, the third category of contempt as referred to by Lord Hardwicke is conceptualized as “prejudicing mankind against persons before the cause is heard”, he later elaborates on this point by stating, “nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard.”8 Notice that there is nothing in Lord Hardwicke’s analysis that mentions prejudicing the court or jury, he was clearly concerned with prejudicing the public outside the context of the court.

Secondly, the case itself was not a jury trial, but a judgetried case! Lord Hardwicke, in applying sub judice, could not have therefore intended “prejudicing mankind” to have meant “prejudicing the jury” since there was no jury to speak of. Considering the doctrine’s frequent modern application to instances where the media is seen to have an undesirable influence over juries, these observations are puzzling: why was Lord Hardwicke so concerned with the public at large being prejudiced, given that they had no say as to the outcome of the case? (b) The Public Sphere and the British Press Schneebaum & Lavi offer a plausible explanation of this conundrum by shifting our focus away from the court’s relationship vis-à-vis the Crown, to the court’s relationship vis-à-vis the burgeoning news media. Although the St James’s Evening Post case came sometime before the Industrial Revolution and the rise of steam-driven rotary printing press, the early 18th century was the harbinger of “mass media” as we know it today and saw the ascent of great individual writers such as Daniel Defoe, Jonathan Swift, and Samuel Johnson- all of whom wrote for and edited newspapers that ignited a newfound interest for the popular press on the part of the ordinary citizenry.9 The British public’s appetite for news media became so insatiable that in 1702, the Daily Courant, founded by Samuel Buckley became the first newspaper to print daily issues,10 and many newspapers later followed. The result was an opening up of what Jürgen Habermas terms the “public sphere”11 in British society, in which the press provided a vital and exciting platform

on which public opinion and discourse could flourish.

With these developments in mind, Lord Hardwicke’s speech in the St James’s Evening Post case becomes somewhat clearer: the doctrine of sub judice as espoused by Lord Hardwicke was not merely rooted in the new view of contempt as preventing obstructions of justice as the courts gained independence from the authority of the crown, but rather represented the tension that existed between the courts and the thriving press as the two institutions jostled for space and legitimacy in the Britain’s nascent public sphere. Hence Schneebaum & Lavi write: “In a new age of a highly influential public press, the court found itself threatened by “public opinion,” not because public opinion would oppose the courts as part of the ruling class, but rather because “public opinion” would replace the court and render the court irrelevant. The tension between the courts and the press was not over control of the public, it was a tension between competing notions of the public… Sub judice, at least at its early moments of inception, had little to do with the danger of obstruction of justice so commonly associated with the doctrine. It was, rather, about a new challenge confronting the courts when faced with the rise of the public press and the transformation of the public sphere. The courts’ claim to authority was no longer to be grounded solely in the authority of the Crown, but was gradually emerging as an independent public authority. Sub judice was a way in which the courts sought, without fully articulating it quite in this way, to newly establish their authority and protect it from contempt by publication.”12 The Singaporean Context Our foray into the history of the sub judice doctrine has two important implications. Firstly, whilst the criticism put forward by commentators like Sui Yi Siong that sub judice is irrelevant to a bench trial jurisdiction like Singapore is apt for the doctrine’s modern application, such an objection misses the nuance of the doctrine’s function at its earliest inception. In his insightful article,13 Sui concludes that: “The law of sub judice contempt was meant to uphold the right to a fair trial, not to constrain

Ibid, p 471 See for example Hannis Grant’s article, Daniel Defoe’s Pioneering Consumer Journalism in the Review, Journal for Eighteenth-Century Studies, March 2007, Vol.30(1), pp. 13-26.

10 Jane Lamb, The Complete Newspaper Resource Book, J. Weston Watch (1985), p. 117 11 Jurgen Habermas, The Structural Transformation of the Public Sphere: an inquiry into a category of bourgeois society, Harvard (18 ed.) 1989.

12 Schneebaum & Lavi, p. 191.

13 Sui Yi Siong, Singapore and the Relevance of Sub Judice Contempt of Court, Law Gazette (2016).

8 9

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public opinion or act as a gag on free speech.” However, if we are to trust our analysis of Lord Hardwicke’s initial definition of sub judice, then “prejudicing mankind” could be taken to mean that the doctrine was in fact intended to act as some kind of a gag on free speech in terms of restricting capacity of the media to mould public opinion.

Secondly, this renewed understanding of the doctrine allows us to analogize the past to the present. As much as we bemoan the stringent regulations provided by the Newspaper and Printing Presses Act,14 and the culture of self-censorship15 in mainstream journalism in Singapore, these restrictions are constantly being undermined today by the rise of independent Internet news sites and social media. If the budding British press contributed to the blossoming of the public sphere in 18th century Britain, then Internet platforms today represent the widening of a public space that is becoming increasingly impossible to police. Sub judice, then, has yet again become the site of a tug-of-war between public institutions and the (online) media for status as the final arbiter of public opinion.

The truly interesting point to note in our context is that in this case it is Parliament rather than the courts that has made a move to emphasize sub judice, and contempt of court laws in general, by passing the new Act (not to mention in such an urgent and accelerated manner). It is submitted therefore that a more felicitous criticism of sub judice would be to question if Parliament has any business codifying a common law doctrine that the courts themselves historically formulated to defend their own place in the public sphere vis-à-vis the mass media. This peculiarity is also reflected in the first contempt of court offence (known as “scandalizing contempt”) provided for in section 3(1)(a) of the Act, which

sets a lower threshold for scandalizing contempt than the previous test given in by the Court of Appeal in Attorney-General v Shadrake Alan. This means that a person can be held in contempt of court if he poses a mere risk of undermining public confidence in the administration of justice rather than a real risk, as was the old threshold at common law. As Professor David Tan, from the Faculty of Law at the National University of Singapore, points out “it is perhaps ironic that the judiciary permits a wider latitude of criticism of itself than Parliament would otherwise tolerate.”

In this sense, the battle for the public sphere does not seem to be between the courts and the mass media, but between the mass media and Parliament (and indeed the Government itself, since it tabled the bill).

Conclusion This article has not sought to provide a comprehensive analysis of the entire law of contempt of court in Singapore, indeed many others have raised important and poignant concerns regarding other aspects of the Act that are also deeply problematic.16 Rather, I hope to have shown that given the doctrine’s specific historical rationales, we should abandon the notion that sub judice is entirely premised on preventing obstructions of justice. Instead, the re-emergence of the old doctrine in political and legal discourse today reflects a certain anxiety in public institutions in respect of a public sphere that has been entirely transformed by the Internet, and which is becoming more open, unpredictable, opinionated, and indeed, vibrant.

Cap 206, Rev Ed 2002.

Singapore ranks 151 in the World Press Freedom Index in 2017, see https://rsf.org/en/ranking.

16 See, for example, WP MP Sylvia Lim’s brilliant speech in Parliament and her criticism of the effective immunity given to the government to comment on pending cases in section 3(4) of the Act; or PJ Thum’s interview on the BBC where he voiced his concerns about section 22 of the Act which makes contempt of court a seizable offence.

14 15

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SOVEREIGN IMMUNITY AND SINGAPORE

by Shawn Siah, University College London

The rise of China has brought a tide of change across the global geo-political paradigm. In a display of irony, Singapore’s non-alignment with any major power bloc has left her a pawn in the game of hegemony between the incumbent and a rising star, leaving her undulated in the ripples of change.

Singapore in the crosshairs On 23 November 2016, nine of the Singapore Armed Forces’ Terrex Infantry Carrier Vehicles were seized in the port of Hong Kong while returning from a military exercise in Taiwan. This seizure of military equipment was widely seen as a calculated move by the People’s Republic of China as subtle retaliation for Singapore’s neutral stance on the verdict of the South China Sea dispute, Philippines v China.1 In this case, the Permanent Court of Arbitration at The Hague had ruled in favour of the appellant state Philippines, an outcome that China rejected (it had previously rejected even the notion that the dispute fell within the Court’s jurisdiction). Singapore’s official position towards Philippines v China and the wider South China Sea dispute was for all parties involved to respect the legal processes entrenched in international law, 1

grounded in her belief in international rule of law as the bedrock of stability for small states like herself that have limited clout and policy space. China ostensibly expected an outward display of approval and solidarity from one of its greatest partners in Southeast Asia.

Choosing Hong Kong (a Special Administrative Region) as the port of seizure deprived Singapore of direct diplomatic channels with Beijing to seek the return of her Terrex ICVs. In addition, the context of the seizure was largely symbolic – military vehicles on transit after an armed forces exercise in Taiwan, a sovereign state that China views as a renegade province and opposes the formation of relations with, much less the execution of military exercises in. The vehicles were held in Hong Kong for two months before eventually being returned to Singapore on 30 January 2017. While this matter appears resolved for now, it would be imprudent to descend into a false sense of security, believing this to be a one-off incident, or even that the oft-vilified China is our only threat in our global neighbourhood.

PCA case number 2013–19

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Sovereign immunity In the aftermath of the incident, sovereign immunity was often mentioned as a solution on mainstream media.

However, there has been an absence of clear exposition and legal analysis on the possibility` of invoking this doctrine.

Sovereign immunity provides for exemption of sovereign states from jurisdiction of foreign national courts, in respect of its sovereign activities and assets. It is a legal doctrine recognised internationally by convention, extended from one sovereign state to another with expectation of reciprocal treatment. This means that, unless it takes decisive steps to waive its immunity, a sovereign state cannot be sued before the courts of another sovereign state, and its assets are not liable to seizure and forfeiture by other countries. A sovereign state can invoke this doctrine for protection at any time when its sovereign activities are impeded or when government property is seized or detained, and this can be done through a seamless administrative mechanism where the host state may ask its domestic courts to determine if sovereign immunity applies to the issue on hand, and if so, to expedite the release of property or bars to a state’s activities.

Could Singapore have invoked sovereign immunity to free her military assets?

Terrex ICVs are the property of the Singapore Armed Forces. By extension, they are assets belonging to the Singapore government and protected by sovereign immunity. Had this saga been protracted in duration, a possible legal option that could have been explored by the Singapore government would have been the assertion of its sovereign immunity before the Hong Kong courts.

In Hong Kong, there is recognition of absolute sovereign immunity by the courts, where all forms of government activity and assets are protected. The latest affirmation of this doctrine occurred through the Court of Final Appeal’s judgment in the landmark case Democratic Republic of Congo v FG Hemisphere Associates.2 In this case, the Democratic Republic of Congo and its stateowned electricity company Société Nationale D'électricité (SNEL) defaulted on payments of a debt owed to an energy company, Energoinvest. Damages awarded to Energoinvest against the Congo government and SNEL 2

through arbitration were reassigned by Energoinvest to FG Hemisphere Associates LLC, but were never paid by the Congo government. FG Hemisphere subsequently learnt that the Congo government entered into a separate joint venture with Chinese companies later, in which the Congo government would be paid US$221 million in mining entry fees and thus applied to the Hong Kong courts to collect these fees in order to enforce the earlier arbitral award. The Congo government asserted sovereign immunity in the legal proceedings over the fees as its “property”.

The Hong Kong Court of Final Appeal held by a 3:2 majority that the Congo government had not waived its immunity in the Hong Kong courts, and that as a Special Administrative Region of China, Hong Kong could not have policies on sovereign immunity that were inconsistent with China’s recognition of absolute sovereign immunity. Essentially, this confirmed that the doctrine of sovereign immunity applied in Hong Kong is absolute, and may be invoked when jurisdiction is sought in her courts in relation to an application to enforce an arbitral award against a foreign government, or when execution is sought against assets owned by a foreign state, unless the foreign state has expressly opted out of protection by sovereign immunity.

Hence, had there been no diplomatic resolution in sight to this episode of detention of Singapore’s Terrex ICVs, the Singapore government could have invoked the doctrine of sovereign immunity through legal action in the Hong Kong courts, and the outcome in principle, barring political pressure from Beijing, would likely have been the expeditious release of her military assets. Indeed, as put across by Professor Simon Chesterman, dean of law at the National University of Singapore, sovereign immunity should apply in this case especially “given China's strong position on sovereign immunity, which it has invoked in other jurisdictions for its own protection”.

Limitations of this doctrine Sovereign immunity, like other international law norms, can be set aside easily by sovereign states, as there exists no mechanisms and penalties for states that fail to adhere to these regulations. This political reality is especially pronounced for superpowers, best demonstrated by The Republic of Nicaragua v. The United States of

(2011) 14 HKCFAR 395

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America.3 In this watershed action brought by a small state against a superpower, proceedings were brought by the Nicaraguan government against the United States in the International Court of Justice (ICJ) for supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbours.

After the ICJ rejected its argument that the Court lacked jurisdiction to hear the case, the United States markedly refused to participate in the proceedings. In addition, the United States blocked enforcement of the judgment by the United Nations Security Council through its right of veto, thereby preventing Nicaragua from obtaining any compensation from the United States.

Hence, while statutory provisions and conventions in international law exist in principle, it is impractical to rely upon them as the sole source of legal protection for Singapore on the world stage.

Recommendations A prudent path to ensure Singaporeâ&#x20AC;&#x2122;s continued security and stability would be to spearhead and invest in the conception of ASEAN as a strategic union. This is a plausible development for the future, with the creation of the ASEAN Community having already been accelerated from an initially projected 2020 to 31 December 2015.

From an entirely pragmatic geopolitical perspective, a united ASEAN would consist a substantial 8.8% of the worldâ&#x20AC;&#x2122;s population and be the 6th largest economy on its own. A united front by ASEAN would provide greater protection for its member states against external threats than international law could, simply due to the substantive demands of global trade and commerce.

3

(1986) ICJ 1

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CASE NOTE Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Ltd

by Charlotte Ng Jane Ting, London School of Economics and Political Science Park Investments Pty Limited v BNY Corporate Trustee Services Ltd1 (Belmont) centred around the anti-deprivation rule (ADR). The ADR is derived from English common law, and is best elucidated as a rule where ‘there cannot be a valid contract that a man’s property shall remain his until his bankruptcy, and on the happening of that event shall go over to someone else, and be taken away from his creditors’.2 In other words, any contractual provision which deprives a company of an asset will be void, by virtue of the ADR, where the deprivation is triggered by a company’s insolvency.

Belmont was an appeal from Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd3 (Perpetual). Belmont is an important case for three reasons. Firstly, Belmont should have been a landmark case for the area of structured financing, but there has been criticism that the Supreme Court had failed to clarify the extent of the application of the ADR, and the decision was described

by Cleary as “something of a disappointment”.4 Secondly, there were parallel proceedings in both English and New York courts, which further complicates the case. Thirdly, Belmont is important for the development of insolvency

[2011] UKSC 38 Ex p Jay, Re Harrison (1880) 14 Ch D 19, per Cotton LJ at para. 26.

3 [2010] 3 WLR 87 4 T. Cleary, ‘Case Note: Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 38’, (2012) 13(1) of Business Law International, p 106.

1 2

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law in a general sense. These issues will be discussed in turn further in this case note.

Summary of Belmont Investors, including Perpetual and Belmont, were invited to subscribe to notes (Noteholders). These notes were issued by a Special Purpose Vehicle (SPV) that was incorporated in Ireland. The proceeds of sale of notes acquired from the Noteholders, were used by the SPV to purchase collateral.The collateral was held by a trustee, BNY. The trust provided that the collateral could be used as security for the SPV’s obligations to both the Noteholders and the swap counterparty (LBSF), with LBSF taking priority over the collateral. Therein the trustee documents lay a ‘flip’ clause which provided that the priority ranking would be flipped if an Event of Default occurred in relation to LBSF, i.e. the Noteholders would rank first.5 The crux of the litigation was whether this flip clause contravened the anti-deprivation rule; effectively could it be a removal of an asset on the event of insolvency, therefore, depriving third party creditors of the asset.

The majority view of the Supreme Court is that where a deprivation is triggered by insolvency, it will only offend that the anti-deprivation rule if the provision in question is considered to be a deliberate attempt to defeat the insolvency legislation, and is in “bad faith”. The Supreme Court found no deliberate intention on the part of the parties to the agreement to avoid the application of insolvency legislation, and considered the impugned elements of it to have been entered into for sound commercial reasons and good faith.

Criticism of the ADR Test and a plausible alternative It is suggested by Worthington that the validity of a transaction, or some part of it, should not turn upon “looser”6 tests of ‘commercial reasonableness’ and ‘good faith’ as these components will be readily satisfied in practice. As Worthington points out, it would be

“next to impossible to prove that a transaction has been entered into without good faith … or is influenced by an improper desire to remove assets”.7 This results in third party creditors of a company being in an extremely disadvantageous position.

Briggs J in Lomas v Firth Rixson8 (Lomas) proposed a quid pro quo test in determining whether the ADR was contravened. Where an asset being deprived is the quid pro quo for some future obligation to be performed by the insolvent party, the deprivation would be valid. Conversely, where the asset being deprived was the quid pro quo for some obligation that had already been performed by the insolvent party, then the deprivation would not be valid.9 It should be noted that the dissenting judges in Belmont, Lords Walker and Mance, recognised the value of the quid pro quo test,10 which is useful if a derivative were involved.11 Source of Funds and Flawed Assets A facet of the decision in Perpetual, as articulated by Lord Neuberger MR, was that as it was “noteholders whose money had been used to purchase the collateral”12 in the first place, it fell out of the scope of application of the ADR and thus justified the subordination of LBSF upon insolvency. Cleary has pointed out that this is contrary to “the basic principle that a person has no in specie interest in the property of a company”,13 and therefore it would not be appropriate to give a person priority in an insolvency on the ground that the person provided the underlying asset. What is more distressing is that Lord Collins, in the majority, concluded in Belmont that the source of funds may be a relevant factor in determining if the transaction was commercially sensible and had been entered into in good faith.14 Surely this cannot be right. As elucidated by Brown and Cleary, a noteholder does not retain any proprietary interest in the asset after the asset has been paid to the issuer.15 The noteholder only has a debt claim against

5 Belmont [2011] UKSC 38, paras. 18 – 24.

6 S. Worthington, 'Testing the anti-deprivation rule: A response to 'Lehman Brothers and the anti-deprivation principle: Current uncertainties and proposals for reform'' (2011) 6(4) Capital Markets Law Journal, p. 453.

7 ibid.

8 [2010] EWHC 3372 (Ch) 9 Lomas [2010] EWHC 3372 (Ch), para. 108.

10 Belmont [2011] UKSC 38, at paras. 131, 179.

11 As noted in Lomas.

12 Perpetual [2010] 3 WLR 87, at para. 67.

13 Supra n.4, p 111.

14 Belmont [2011] UKSC 38, at para. 99.

15 C. Brown and T. Cleary, ‘Impact of the global financial crisis on OTC derivatives in structured debt transactions’ 5(2) Capital Markets Law Journal, p. 225.

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the issue for repayment, and a security interest over the collateral.16 Therefore, the preference for the interests of the noteholders over those of the swap counterparty, given that they have the same legal status in claims, appears to be contrary to a basic principle of English corporate insolvency law – the pari passu principle.

Perhaps, as Collins asserts, Lord Neuberger MR was suggesting that the asset held by LBSF was a flawed asset,17 i.e. LBSF’s interest was always contingent on LBHI’s solvency.18 Nevertheless, Lord Collins affirmed in Belmont that a flawed asset could not avoid the application of the ADR.19 On the other hand, Worthington is of the view that flawed assets could be created, but the flaw has to be “permitted by the law”.20 New York Proceedings As LBSF was incorporated in the United States (US), it was subject to the US Bankruptcy Code (Ch. 11). Hence, the bankruptcy case was heard in New York. At the same time, the relevant contracts were governed by English law, and the collateral in question was in England. Therefore, the dispute was heard by the English courts.

LBSF argued that the flip provision contravened the ipso facto provisions in Ch. 11, which render unenforceable any provision that alters a party’s rights as a consequence of the commencement of a case under Ch. 11.

Judge Peck found the ‘flip’ provision to be invalid, and but had no powers to overrule the English decision of Perpetual. Furthermore, Judge Peck’s decision was solely on the basis of New York law.

A different type of resolution Collins noted that neither court mentioned lex mercatoria, apart from a brief acknowledgement of the ISDA Master Agreement21 in the background to the transaction. Collins has also pointed out that national rules do not admit the exception that where an international transaction regulated by ISDA (or any Master Agreement) is involved, ordinary national rules of property law and insolvency law should not be applied or should only be applied in a manner that respects the authority of the Master Agreement.22 Perhaps, it might be wise for courts to approach the next major decision in financial law by seeking to reconcile lex mercatoria with state mandatory rules based on public policy and constitutional principles.23 Conclusion Belmont has given academics and practitioners alike something to ponder about. It is not disputed that Belmont is a complicated case, and there are some aspects in which the Supreme Court may not have clarified satisfactorily – the application of the ADR and the issue of flawed assets. These are issues which could be certainly be ironed out by the courts in the next landmark financial law case.

ibid.

Perpetual [2009] EWHC 1912 (Ch), para. 45.

18 H. Collins, Flipping Wreck: Lex Mercatoria on the Shoals of Ius Cogens, p 15.

19 Affirming the decision in Lomas.

20 Supra n.6, p. 454.

21 International Swaps and Derivatives Association Master Agreement 2002, the standard document that is used to document over-the-counter derivatives transactions.

22 H. Collins, Flipping Wreck: Lex Mercatoria on the Shoals of Ius Cogens, pp 17-18.

23 Supra n.22, p 21.

16 17

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CASE NOTE: CHALLENGES TO THE RESERVED PRESIDENTIAL ELECTION Tan Cheng Bock v Attorney-General

by Yau Chun Shin, London School of Economics and Political Science

On 9 November 2016, Parliament passed into law changes to the Elected Presidency, with a view towards limiting the candidacy for particular Presidential elections to members of minority communities under certain circumstances. Since then, legal challenges have been brought against these changes, such as in the case of Tan Cheng Bock v Attorney-General (“Tan”).1 An examination of the issues raised in Tan – such as the purpose of and relationship between Articles 19B and 164, the articles of the Constitution defining the reserved Elected Presidency and facilitating the implementation thereof – is fruitful in situating the changed Elected Presidency in Singapore’s constitutional landscape, and exploring its accordance with the principles therein.

The Elected Presidency and the changes proposed A modicum of history is useful in contextualising the

changes made to the Elected Presidency and the challenge raised in Tan. Prior to the institution of the Elected Presidency, the President’s office was “a largely ceremonial appointed post”, albeit “bearing great semiotic significance”.2 In 1988, however, the notion was mooted of turning the symbolic office into one with custodial powers, in order to ensure an “institutional check” over any future “potentially imprudent executive”.3 Alongside these powers – ranging over matters such as finances, fundamental liberties and constitutional changes4 – the new office was to be filled by popular election. These changes, establishing the modern Elected Presidency, were passed in 1991, during President Wee Kim Wee’s second and final term; President Wee, while elected by Parliament, was availed of the newly established powers for the remainder of his term, via the introduction of Article 163 to the Constitution.

[2017] SGHC 160.

Thio Li-Ann, “The elected president and the legal control of government” in Kevin Y.L. Tan and Lam Peng Er (eds), Managing Political Change in Singapore (Routledge 1997).

3 Ibid.

4 Ibid.

1 2

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Following President Wee, there have been four six-year terms served by Presidents elected by the people: President Ong Teng Cheong (one term from 1993 to 1999), President S.R. Nathan (two terms from 1999 to 2011) and President Tony Tan (one term from 2011 to the present day). Throughout this period, numerous aspects of the Elected Presidency have been altered, such as the presidential veto in matters of defence5 and public office appointments.6 Most recent amongst these changes is the reservation of the Elected Presidency for minorities in particular circumstances. Specifically, as Article 19B, the article governing the reserved election, sets out, this occurs if no person belonging to a particular community has occupied the office of President for “any of the 5 most recent terms of office”. Parliament has since designated, under Article 164 (which gives it the power to do so), the first term from which the five-term count will begin (the “First Term”), choosing for this purpose the second term of President Wee. Tan Cheng Bock v Attorney-General: A stumbling block?

These latest amendments to the Elected Presidency have since been challenged in court, most notably in the case of Tan. The plaintiff, Dr Tan Cheng Bock, was a candidate in the 2011 Presidential Election, and was precluded from running in the 2017 Election by the new changes.7 Unlike other cases,8 however, Tan contested not the notion of reserving the Elected Presidency itself, but rather its timing, so to speak. Specifically, a declaration was sought that Parliament’s identification of President Wee’s second term as the First Term was incompatible with Articles 19B(1) and 164(1)(a) of the Constitution.9 The plaintiff’s submissions turned on three arguments: (1) From “its language and its textual context”, Article 19B(1)’s reference to the “5 most recent terms of office of the President” means “the five most recent terms of office of Presidents who were elected to their office by the citizens of Singapore”; President Wee’s second term, the result of election by Parliament, would therefore not fall under Article 19B(1), and the Schedule des-

ignating it as the First Term would be unconstitutional.

(2) Beyond its statutory context, other material demonstrates that Article 19B(1)’s purpose was to ensure that the popular election of the President would not deprive the office of community diversity; to count President Wee’s second term as the First Term would therefore fail to ensure “a close correlation between the mischief and the remedy".

(3) Article 164(1)(a) cannot found Parliament’s choice of President Wee’s second term, being subject to Article 19B. Following arguments (1) and (2), this would mean that Parliament could “delay the implementation of the [reserved election]” by choosing a term following President Wee’s second term, “but not … accelerate it”.10 The plaintiff’s application was dismissed by Quentin Loh J in a clearly reasoned and persuasive judgement. Nonetheless, as will be expanded upon, certain aspects of these issues might have benefited still from closer examination.

Issue (1): Interpreting Article 19B within its statutory context Loh J disagreed with the plaintiff’s narrow reading of “President” in Article 19B(1) as referring only to popularly elected Presidents; instead, “President” ought to be read as encompassing those Presidents elected by Parliament as well.11 The plain language of the Article, he held, indicates no such distinction, though such a distinction could easily have been made clear, had it been intended by Parliament.12 That no such distinction was meant is all the more conspicuous when contrasted with that explicitly drawn by Article 19B(3), which excludes from “President” those who exercise the office’s functions when it is vacant or when the President is temporarily disabled; were the plaintiffs right in this submission, Article 19B(3) would be redundant.13 Loh J further rejected the plaintiff’s argument that a broader reading of the Constitution supported the nar-

Art 151A. Art 22.

7 ‘Tan Cheng Bock applies to High Court for clarification on upcoming Presidential Election’ Channel NewsAsia (Singapore, 8 May 2017). <http:// www.channelnewsasia.com/news/singapore/tan-cheng-bock-applies-to-high-court-for-clarification-on-8828230> Accessed 20 June 2017.

8 See Ravi s/o Madasamy v Attorney-General [2017] SGHC 163.

9 Tan at [1].

10 Ibid. at [31].

11 Ibid. at [58].

12 Ibid. at [59-61].

13 Ibid. at [62].

5 6

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row definition of “President”, due to the combined effect of Article 2, which defines “President” as “elected under this Constitution”,14 and Article 17A(1) – which provides that the President “is to be elected by the citizens of Singapore”.15 In this regard, however, Loh J’s first point that Article 2 “[o]n its clear terms” does not “expressly stipulate” a popularly elected President16 appears somewhat artificial; after all, if the plaintiff is requesting a purposive interpretation with reference to the context of other constitutional provisions, there is no immediately apparent reason why portions of that context should be severed, examined and dismissed in isolation.

More persuasive, however, is Loh J’s subsequent analysis of the respective legislative histories of Articles 2 and 17A. Firstly, “it would not make sense for [Article] 17A to look backwards by referring to Presidents who were elected by Parliament”, being enacted as it was following the inception of the Elected Presidency. Moreover, Article 17A cannot possibly be interpreted to have constrained the definition of “President” in Article 2; otherwise, Presidents elected by Parliament would have ceased to be Presidents – since there was no “savings provision” for them à la Article 163 for President Wee – and “all their acts, including all the Acts of Parliament to which they assented, would fall away”.17 Plainly, this could not be what Parliament intended, a finding reinforced by the observation that Parliament deemed Article 2 of sufficient “utility” to have retained it through the 1991 and 2017 constitutional amendments.18 A reading of Article 19B on its own terms and in its constitutional context therefore encompasses Presidents elected

by Parliament, rendering valid the choice of President Wee’s second term as the First Term.

Issue (2): Interpreting Article 19B outside of its statutory context: extraneous material On the second issue, Loh J rejected the plaintiff’s argu

ments as well. Drawing from extraneous material,19 such as the Report, the White Paper and Parliamentary Debates, the plaintiff submitted that the purpose of Article 19B as envisioned by Parliament was to “ensure that our present system, where the President is popularly elected, produces Presidents from minority racial communities from time to time”,20 with the attendant implication that choosing President Wee’s second term as the First Term would not fulfil this purpose. From the same material, the defendant submitted conversely that Parliament’s intention was more specific: to “permit subsequent specification of President Wee’s second term of office as the First Term”.21 In response, Loh J rightfully observed that “Parliament’s intention is a complex of purposes at different levels of abstraction, and a purposive interpretation must, as far as possible, be true to Parliament’s intention as a whole”.22 Ultimately, he ruled that while the plaintiff’s interpretation could not “safely be inferred”,23 the proceedings of Parliament made it clear that the defendant’s interpretation was valid;24 consequently, he was bound “to give effect to Parliament’s will and intent” by reading Article 19B as permitting the choice of President Wee’s second term.25 Loh J’s judgement on this issue is supplemented by two strands of reasoning. Firstly, he identifies from the material an intention more abstract than either the plaintiff’s or the defendant’s – “to uphold multi-racialism by ensuring minority representation in the Presidency in view of the President’s role as a symbol of the nation and a unifying figure that represents multi-racial Singapore”26 – and suggests that the consonance of the defendant’s interpretation with this intention provides support for the former.27 Yet, the same could be said between the plaintiff’s interpretation and Loh J’s more abstract intention: the popular election of Presidents from minority racial communities would ensure minority

Art 2.

Art 17.

16 Tan at [65(a)].

17 Ibid. at [65(c)].

18 Ibid.

19 Per Section 9A(3) of the Interpretation Act, and Attorney-General v Ting Choon Meng and another appeal [2017] 1 SLR 373.

20 Tan at [85(a)].

21 Ibid. at [85(b)].

22 Ibid. at [87(b)].

23 Ibid. at [87(a)].

24 Ibid. at [90].

25 Ibid. at [91].

26 Ibid. at [85(c)].

27 Ibid. at [92].

14 15

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representation. In itself, therefore, this argument does not seem to favour either party, and appears less decisive for the defendant than Loh J perceived.

Article 164(1)(a) does not restrict Parliament from choosing President Wee’s second term as the First Term.

Loh J’s second strand of reasoning is more secure, in that it directly confronts the plaintiff’s submission that Parliament’s “clear and specific intention” be disregarded for having been formulated under a mistake of law.

As Loh J explains, Articles 19B and 164 constitute the making of new law, and so “[t]here was no law for Parliament to be mistaken about”.28 Even if Parliament had held “a misunderstanding as to the meaning of [Article] 19B”, he is nonetheless “bound to give effect to Parliament’s clear intention”. This accords naturally with Singapore’s “constitutional ethos… of parliamentary sovereignty”, as identified by Neo and Lee,29 and affirms the duty of the courts to interpret the law as Parliament makes it.30

Issue (4): The “fundamental rights” argument Apart from the abovementioned issues, the plaintiff’s written submissions contained a further argument, termed as “the fundamental rights argument”.35 The plaintiff argued that Article 19B(1), in reserving the election for members of a particular community, encroaches on the rights of those not from that community: specifically, “the right to stand for election, or to participate in the presidential election process”.36 Since this was a “fundamental right”, it should be given a “generous interpretation”, with any restrictions thereon to be “narrowly interpreted”.37 It was thus argued that “the Court should be slow to interpret Article 19B(1) in a way which ‘accelerates’ a Reserved Election, for this [would] result in an earlier encroachment of the rights of [those not from the reserved community]”.38 This argument was, however, not presented in oral submissions before the court.

Issue (3): The relationship between Articles 19B and 164(1)(a) On the issue of the relationship between Articles 19B and 164(1)(a), Loh J agreed with the plaintiff that the latter was subject to the former. He observed that Article 164(1)(a) was both “duty-imposing and … power-conferring":31 while it did not limit Parliament’s power to choose a First Term,32 it should, “where possible, be interpreted consistently and in harmony with [Article 19B]”, with Article 19B “[prevailing]” “if there is an inconsistency”.33 This was fairly straightforward, given that Article 164 demonstrates through its heading – “Transitional provisions for Article 19B”34 – and its text that it is an enabling provision for the implementation of Article 19B. Nevertheless, given that Article 19B was, as abovementioned, found to encompass Presidents elected both popularly and by Parliament,

Nevertheless, Loh J addressed this argument in his judgement. While he agreed with the “settled principle” of interpreting fundamental rights generously, he denied that the right to stand for election belonged to this category, being absent from the fundamental liberties enshrined in Part IV of the Constitution.39 Loh J further identified the right to stand for election as contingent upon the qualifying conditions and requirements imposed by Article 19(1);40 therefore, it was different from the fundamental Part IV liberties, which are available to everyone.41

Ibid. at [94].

Jaclyn Ling-Chien Neo and Yvonne CL Lee, “Constitutional supremacy: Still a little dicey?” in Li-Ann Thio and Kevin YL Tan (eds), Evolution of a Revolution: Forty years of the Singapore Constitution (Routledge 2009).

30 Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR 815 at [21].

31 Ibid. at [50].

32 Ibid. at [51].

33 Ibid. at [52].

34 Art 164(1).

35 In its reference to rights, the fundamental rights argument is distinct from the other issues in Tan, and parallels similar rights-based arguments in Ravi s/o Madasamy v Attorney-General [2017] SGHC 163, which were also rejected, albeit for different reasons.

36 Tan at [32(b)].

37 Ibid.

38 Ibid. at [32(c)].

39 Ibid. at [41].

40 For example, citizenship, age and qualities as warranted by the Presidential Elections Committee.

41 Tan at [43].

28 29

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While the former observation – that the right to stand for election is not to be found in Part IV – is surely right, Loh J does not quite explain how the conditions of Article 19(1) should differentiate this right from the Part IV liberties, which are themselves subject to restrictions.42 Article 19(1) alone therefore seems insufficient to justify the classification of the right to stand for election as non-fundamental. Nevertheless, Ong Ah Chuan and another v Public Prosecutor (“Ong”),43 which Loh J relies on, does indeed provide strong authority for understanding fundamental liberties as synonymous with those guaranteed in Part IV.44 While Loh J’s reluctance to expand the definition of fundamental liberties may be attributed to judicial “deference to parliamentary wisdom”,45 his approach is faultless, if erring on the side of caution and terseness.

Conclusion Tan is by no means a simple case, drawing as it does across a wide range of material both statutory and non-statutory. At the same time, it is one of great constitutional importance, given the weight attached to the office of the President (as Loh J notes at several points). It is in this light that Loh J’s judgement must be read, with its consequent implications for future developments, both in politics and in legal aspects such as the principles of statutory interpretation and the judicial treatment of fundamental liberties. While it appears unlikely that the Court of Appeal will reverse Loh J’s judgement, it is hoped that the ambiguities sketched out above will be elaborated and clarified.

See Art 9(1), which allows the liberty of the person to be restricted “in accordance with law”, and Art 12(2), which makes an exception from equal protection of citizens where “expressly authorised by [the] Constitution”.

43 [1979-1980] SLR(R) 710.

44 Ibid. at [23].

45 Supra, n. 29.

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CASE NOTE R (on the Application of Miller and another) v Secretary of State for Exiting the European Union ("Miller")

by Filbert Lam, University of Edinburgh

On 24 January 2017, the Supreme Court of the United Kingdom (“the UK”) delivered it’s decision in Miller. By a majority in the referendum (“2016 Referendum”), the UK voted to leave on 23 June 2016, though not without significant disagreements amongst the nations constituting the UK. My analysis of the Miller decision can be divided into two parts. First, I intend to consider the decision of the majority of the Court, without considering the devolution issues which were unanimously dismissed. Next, I shall turn to consider if the dissenting opinions of Lords Reed and Carnwath undermine the reasoning of the majority decision. As judicial review applications do not deal with the merits of a decision made by public authorities, my essay will be strictly confined to the legal arguments before the Court.1

Decision of the majority in the Miller’s case The primary issue in this appeal is extent of the Executive’s (or “Government’s” or “Royal”) prerogative power to make or unmake treaties. Further, withdrawal from the EU is an exercise of state sovereignty, expressly provided for in the EU Treaties, in accordance with the UK’s own constitutional requirements.2 Extent of the Executive’s prerogative (a) Introduction The crux of this issue relates to the interaction of the Royal prerogative3 and the EU Treaties. The Appellant’s case is that the Crown has the prerogative to enter into and terminate EU treaties. The Respondent claims that giving Notice under Article 50 of the Treaty of the European Union (“Art. 50”) alters domestic law without prior legislation by Parliament.

See, inter alia, Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent (“GCHQ”) [1985] AC 374, per Lord Fraser of Tullybelton, at 401, and per Lord Diplock, at 410-411; cited with approval in R v Panel on Take-overs and Mergers, Ex parte Datafin Plc. and Another (“Ex p. Datafin”) [1987] QB 815, per Sir John Donaldson MR, at 842 2 Shindler v Chancellor of The Duchy of Lancaster and another (“Shindler”) [2016] EWCA Civ 469, per Lord Dyson MR, at [16] 3 The Royal prerogative is a set of residual powers, most of which has been vested in the organs of the State.

1

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(b) Background constitutional principles In the absence of a written constitution, recourse must be had to the application of well-established background constitutional principles. Two “features” of the UK’s constitution are relevant in Miller. First, the Executive can ratify international treaties without the involvement of Parliament. This is generally not subject to judicial review. Second, the prerogative cannot be exercised in a way which amends, nullifies or frustrates domestic law without Parliamentary authorisation. These principles are not in dispute.

The interaction of Parliamentary sovereignty and the Royal prerogative involves two secondary principles – (1) ‘abeyance’ and (2) ‘frustration’ principles.4 Where a statutory provision directly overlaps with prerogative authority, the former takes priority over the latter, which goes into ‘abeyance’.5 This shifts the source of the power from the Crown to Parliament. The exercise of the prerogative must be consistent with the legal limits. In contrast, under the ‘frustration’ principle, an existing prerogative cannot be exercised such as to expressly or implicitly frustrate the intention of Parliament under statute. (c) Application of these principles to the present case The Court distinguishes two relevant effects of the European Communities Act 1972 (“ECA”) – (1) EU law apply as part of domestic law, and (2) the ECA effected a constitutional change in providing for a new law-making process. The majority of the Court held, EU law has become a source of domestic law, and takes precedence over all other sources of domestic law. (i) Argument One – EU law is a new source of domestic law The Court recognised that EU law is a new source of domestic law, with their source being the EU institutions.

This is supported by the recognition of three routes in which EU law may take effect in domestic law and is justiciable in domestic courts.

These were identified by the Divisional Court as – (1) “rights capable of replication in UK law”, (2) “rights derived by UK citizens from EU law in other Member States” and (3) “rights of participation in EU institutions that cannot be replicated in UK law”. On this analysis, the prerogative cannot be exercised in a way which will amend, frustrate or nullify EU law rights without Parliamentary approval. This does not contradict Finnis’s argument that the ECA is not a source of but “conduit” through which EU law has been “grafted onto” domestic law.6 These two implications of the ECA are “closely related, but they are legally and conceptually distinct”. (ii) Argument Two – Constitutional arrangement of the UK The second argument is that the Royal prerogative cannot be exercised in a way which fundamentally alters the constitutional arrangement of the UK. The ECA provided for a new law-making process, which restricted the scope under which the Royal Prerogative may be used to amend EU law domestically.

The Court affirmed the aforementioned three categories of EU law rights. The nullification or frustration of even one category of rights is sufficient to impose a limit on the exercise of the prerogative in this case. The Court found that Brexit will affect “rights capable of replication” in domestic law. Thus, the exercise of the prerogative will lead to the nullification or frustration of at least one category of rights and should be curtailed.

The Government argued that these rights are “ambulatory” and their removal has been authorised by Parliament through the ECA, s. 2, which allows for international obligations of the UK to the EU to be amended “from time to time”.7 EU law rights disappear when the UK is not a party to the EU Treaties. The loss of EU law rights is merely symptomatic of the UK’s withdrawal from the EU.

For an exposition of this excellent proposed analytical framework, see R. Craig, “Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum”, (2016) MLR 1041.

5 Attorney General v De Keyser’s Royal Hotel Ltd (“De Keyser”) [1920] AC 508, in particular, per Lord Atkinson, at p. 540, and, more generally, per Lord Parmoor, at pp. 566 ff.; R v Secretary of State for the Home Department, Ex p Fire Brigades Union (Fire Brigades Union”) [1995] 2 AC 513, per Lord Browne-Wilkinson, at p. 552; see also, Laker Airways Ltd v Department of Trade (“Laker Airways”) [1977] QB 643, per Roskill LJ, at pp. 718720; Miller, per Lord Neuberger, at [48] 6 See, John Finnis, Terminating Treaty-based UK Rights (Judicial Power Project, 26 October 2016) < http://judicialpowerproject.org.uk/wp-content/ uploads/2016/10/Finnis-2016-Terminating-Treaty-based-UK-Rights-v2.pdf>, accessed 27 January 2017, at pp. 5-9; John Finnis, Terminating Treaty-based UK Rights: A Supplementary Note (Judicial Power Project, 2 November 2016) <http://judicialpowerproject.org.uk/wp-content/uploads/2016/11/Finnis-2016-Supplementary-Note-pg.pdf>, accessed 27 January 2017 7 Ibid.; ECA, s. 2.

4

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The Court emphatically rejected the Government’s argument. The issue of the content of EU law contained in domestic law varying “from time to time” was not before the Court and is immaterial. The majority held, considering the constitutional arrangement of the UK, prerogative powers may not be used in away which completely severs the “graft” of EU law onto domestic law. Given the ECA was silent on the issue of the Government’s power to terminate its rights and obligations under the EU Treaties, the Government’s argument is manifestly inconsistent with the well-established constitutional arrangements of the UK. Silence does not imply Parliamentary consent.8 (d) Commentary Some commentators criticized the lack of a legal basis for this second argument.9 Endicott writes, “The constitutional importance of this treaty is too great for a minister to cancel it.”10 Unfortunately, he mischaracterised the decision by suggesting that the constitutional status of the EU treaties, rather than the ECA, was material to the Court’s decision. This is an uncharitable view of the majority’s decision. It was the constitutional arrangement expressly provided for in the ECA, and not the EU Treaties, which the Court held was of great constitutional importance. Further, it is peculiar to suggest that any domestic court has the authority to declare an international treaty to be of any constitutional relevance.11 Consistency with the dualist approach requires that any argument made to that effect, absent of any reference to a transposing Act of Parliament, be deemed, a contrario, a non-starter. This point was noted by Lord Carnwath when his Lordship emphasised the “unprecedented nature” this decision.

Finally, this second argument is edified on a sturdy bedrock of background constitutional principles.12 The exercise of prerogative powers is constrained by statutory and common law rules as interpreted and applied by the

judiciary. Fundamental to the application of Craig’s abeyance-frustration analytical framework, the exercise of this prerogative to EU treaties is the unique exception to the Ponsonby Convention – now enshrined in Constitutional Reform and Governance Act 2010, s. 2013 – which does not apply to EU Treaties. The application of these principles harks back to the UK’s dualist legal order.14 In this context, the exercise of prerogative powers is curtailed insofar as it alters the rights of individuals without Parliamentary intervention.15 Further, the enactment of the ECA, s. 2, far from contradicting these principles, is the teleologically founded on them. Unsurprisingly, it has been rightly recognized that the Referendum formed merely part of the constitutional requirements for Brexit.16 One must view the criticism that the majority’s decision in this respect is devoid of any legal authority with much skepticism. The Court did not suggest the Executive is absolutely precluded from exercising its prerogative to (un)make treaties. However, if the exercise of such prerogative leads to the frustration or nullification of domestic law, then this prerogative may only be exercised with Parliamentary approval. Nevertheless, as I will explain below in my analysis of Lord Reed’s dissenting opinion, there is much force in other criticisms of this second argument. (e) Conclusion The Miller decision reaffirmed that powers exercisable by the Government have legal limits. The Government cannot exercise its prerogative powers in a way which will “defeat, nullify or frustrate statutory rights”.17 The exercise of the prerogative to give the Notice, without Parliamentary approval, is unconstitutional on two grounds – (1) it alters domestic legal rights and (2) it causes a major, fundamental change to the UK’s constitutional arrangement. On these grounds, the Court rejected the Secretary of State’s appeal.

In R v Secretary of State for the Home Department, Ex p Simms (“Ex p Simms”) [2000] 2 AC 115, Lord Hoffmann held, at 131 (“[f]undamental rights cannot be overridden by general ... words”) 9 See, for instance, T. Endicott, ‘A Treaty of Paramount Importance’, U.K. Const. L. Blog (26th Jan 2017), <https://ukconstitutionallaw. org/2017/01/26/timothy-endicott-a-treaty-of-paramount-importance/>, accessed 28 January 2017 10 Ibid.

11 JH Rayner, per Lord Oliver, at pp. 500-501 12 R (on the application of Jackson) v A-G [2005] UKHL 56, per Lord Bingham of Cornhill, at [9] (“The bedrock of the British constitution is ... the supremacy of the Crown in Parliament.”)

13 Constitutional Reform and Governance Act 2010 (“CRAG”), s. 20 14 See, inter alia, Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22, per Lord Kingsdown, at 75 15 JH Rayner, per Lord Oliver of Aylmerton, at p. 500 (“[A]s a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing.”)

16 Shindler, per Lord Dyson MR, at [13] 17 Lord Pannick QC, Day 3 Transcrtipt, Art. 50 – Brexit Hearing, at 17:3-6 8

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The Dissenting Opinions Turning to the dissenting opinions, I shall argue that the arguments posited by the dissenting Justices, particularly Lords Reed and Carnwath, do not diminish the force of the majority’s opinion. My analysis will address the sui generis nature of EU law and certain criticisms within academic circles of the Respondents’ arguments.

Issue 1 – Lord Reed on the Status of EU law The fundamental difference between the majority and dissenting opinions lies in how they perceive EU law fits within the domestic legal system of the UK.18 The minority argued that the ECA is no more than a ‘conduit’ for the transposition of EU law. EU law does not form a part of domestic law in the UK. There has been no graft from which EU law will be severed by the Notice. (a) EU law is not part of domestic law Lord Reed argued that there was “no basis in the language of the [ECA]” to draw a distinction between changes in domestic law resulting from “variations in the content of EU law arising from new EU legislation” and those resulting “from withdrawal by the UK from the [EU]”.

Section 2(1) of the ECA expresses a conditional requirement. If the UK is not a Member of the EU, then the relevant EU law rights will not be given legal effect in domestic law. Lord Reed makes a forceful, albeit comparatively less persuasive, argument that, without an express intention, Parliament is presumed to not have departed from the principle that the treaty-making prerogative is exercisable solely by the Crown. Parliament may impose a fetter on the treaty-making prerogative only by express provision. However, that the ECA imposes no such fetter does not assist Lord Reed’s position.

His Lordship’s conclusion is only sound if the exercise of the treaty-making prerogative is itself unfettered. Un-

fortunately, his Lordship has not defended this implicit assumption. The membership status of the UK in the EU does not assist in determining if the ECA has legal effect.

Craig argued that the ECA, s. 2(1), has the opposite effect of providing Parliamentary consent. He further suggests Art. 50 has been given statutory recognition by the ECA and 2008 Act.19 This precipitates from a broader proposition – that the proper framework to consider the interaction between statutory schemes and prerogative power is through the ‘abeyance’, as opposed to ‘frustration’, principle.20 Craig argues that the leading case demonstrating this distinction is Fire Brigades Union.21 (b) The case of Rees-Mogg and Commentary Lord Reed’s opinion does not diminish the majority’s reasoning. The case of R. v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg (“Rees-Mogg”)22 relates to the legality of the Executive to ratify the Maastricht Treaty.2324 It is crucial to discuss this case for two reasons. First, both Rees-Mogg and Miller are judicial review applications against the treaty-making prerogative exercised in relation to the EU Treaties. Second, Rees-Mogg was instrumental in Lord Reed’s decision. However, Rees-Mogg does not assist the Miller decision because the protocol in Rees-Mogg did not seek to alter domestic law. Craig’s first premise was that since the exercise of the treaty-making prerogative is governed by Art. 50 in EU law, then it remains under the sole, unbridled remit of the Executive, by virtue of the ECA, s. 2(1), to invoke Art. 50.25 However, as Phillipson argues, this erroneously assumes that EU law is automatically enforceable under domestic law.26 Not only is this an incorrect proposition of EU law, Craig overtly conflates the legal position under international and domestic law in violation of the long-standing dualist approach of the UK.27 Further, the operative part

M. Elliott, Analysis: The Supreme Court’s Judgement in Miller, Public Law for Everyone Blog, <https://publiclawforeveryone.com/2017/01/25/ analysis-the-supreme-courts-judgment-in-miller/>, 25 January 2017, accessed 31 January 2017; Miller, per Lord Reed, at [217], “The Act simply creates a scheme under which domestic law reflects the UK’s international obligations, whatever they may be.”

19 G. Phillipson, A dive into deep constitutional waters: article 50, the Prerogative and Parliament (2016) 79(6) MLR 1064-1089, at p. 1069.

20 Craig, at pp. 1045-6 21 Fire Brigades Union, per Lord Browne-Wilkinson, at p. 552 22 R. v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg (“Rees-Mogg”) [1994] Q.B. 552 23 The Divisional Court in Rees-Mogg rejected Lord Pannick’s reliance on the ‘abeyance’ argument and held that the ECA neither, by implication, curtail nor impose a fetter on the prerogative; See, inter alia, Rees-Mogg, per Lloyd LJ, at pp. 554-5 and p. 567 24 Rees-Mogg, per Lloyd LJ, at p. 567 25 Craig, at pp. 1051-1052 and 1056-1057 26 G. Phillipson, A dive into deep constitutional waters: article 50, the Prerogative and Parliament (2016) 79(6) MLR 1064-1089, at p. 1071; ECA, s.

2(1).

27 Ibid., at p. 1072; Rees-Mogg, per Lloyd LJ, at p. 570 18

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of Art. 50, which prohibits an immediate Brexit,28 is effective only on the international, not domestic, plane.29 Thus, the ECA, s. 2(1), does not create domestic legal rights relating to Art. 50 and Parliament did not consent to the issuance of the Notice.30 Art. 50 does not alter the content of domestic law.31 However, the issue in Miller is not whether there are other mechanisms by which domestic legal rights may be amended, repealed or frustrated but if the exercise of the prerogative power to resile from the EU Treaties is causally linked to such effects on domestic law.32 And if it does, then such exercise should be limited to the extent that it does not affect domestic law, as Lord Oliver held in JH Rayner.33 There is no presumption, rebuttable or otherwise, that the constitutional arrangement of the UK has not changed when resiling from the EU Treaties vis-à-vis when the UK acceded to the EU. Miller concerns the complete removal of EU law in the UK legal order, whilst Rees-Mogg relates to the alteration of the content of EU law “from time to time” “without Parliamentary approval”.34 In Rees-Mogg, the status of EU law was not determinative of the outcome. The Miller case involved the more fundamental question of a complete removal of EU law within the domestic legal order. Such a presumption would beg the question in Miller of whether the constitutional arrangement, post-1972, allows for the Executive to frustrate domestic law without Parliamentary approval. Therefore, in light of the above, the dissenting opinion of Lord Reed does not diminish the reasoning of the majority in my view. (c) Inherent tension between content and law-making framework of EU law One could criticize the majority for not attempting to resolve the inherent tension between how EU law is

both an independent source of domestic law when it is dependent on the ECA for that status.35 However, it is uncontroversial that EU membership does not alter the UK’s rule of recognition. Lord Reed argued forcefully for the distinction between the constitutional basis for the EU’s legislative regime and the source of its validity within the domestic legal order of the UK. The reference to the “independent source” of rights relates to the content, whilst the “dependence” on the ECA relates to the constitutional law-making process. Crucially, Lord Reed held, just because both Parliament and Executive need to act in tandem, “that does not mean that legislation is required simply to initiate it”. Thus, Professor Elliott’s analysis is more likely to comport with, than dissent from, the majority’s opinion.

In sum, whilst Lord Reed makes a forceful argument, the majority’s view that EU law has become a source of domestic law is more convincing on balance. The majority’s position that the ECA did not authorize, under statute, the Crown to give Notice is more favourable compared to Lord Reed’s approach based on the silence of the statutory provision.

Issue 2 – Lord Carnwath on the Will of Parliament Lord Carnwath’s opinion focuses on the principle of Parliamentary accountability. Parliament has the ability to ensure the Executive remains accountable through non-justiciable Parliamentary procedures. His Lordship argued Miller may be reduced to the narrower issue of statutory construction, like in Fire Brigades Union.

Lord Carnwath held such legal formality is unnecessary having regard to the the House of Commons motion giving effect to the 2016 Referendum outcome. However, his Lordship’s point was, respectfully, prematurely made. For instance, there is also the possibility that, if the Notice was revocable, it is not immediately clear

Art. 50(2) TEU Ibid., at p. 1073 30 Ibid., at p. 1071-2.

31 Ibid., at p. 1072 32 See also, Shindler, per Lord Dyson MR, at [16] (“It is one thing for member states to agree that, while they are members of the European Union, they will not infringe EU law and to that extent will accept what might be described as a loss of sovereignty. It is quite a different matter for them to agree that they may only decide to withdraw from the European Union if they can do so without infringing EU law.”, emphasis in original) 33 JH Rayner, per Lord Oliver, at p. 500 34 Rees-Mogg, per Lloyd LJ, at 560; ECA, s. 2(1); See also, Rees-Mogg, per Lloyd LJ, at 567, where the Divisional Court in Rees-Mogg rightly doubted that there was a limit, placed by Parliament, such a prerogative power in that specific context.

35 See, inter alia, M. Elliott, Analysis: The Supreme Court’s Judgement in Miller (Public Law for Everyone Blog), <https://publiclawforeveryone. com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/>, 25 January 2017, accessed 31 January 2017; M. Elliott, Miller and the modern British Constitution (Counsel Magazine, 2 February 2017), <https://www.counselmagazine.co.uk/articles/miller-and-the-modern-british-constitution>, accessed 4 February 2017 28 29

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such revocation would require (1) another referendum and/or (2) Parliamentary approval.36 This does not diminish the force of the majority’s opinion.37 Additionally, Phillipson’s comment – that Parliament and the Executive are not “antagonistic alternatives”38 – was made specifically in response to the substance of Tomkins’s critique39 of judicial activism by the court in Fire Brigades Union.40 The majority’s opinion does not purport to choose between such diametrically-opposed alternatives. Further, both the political significance of the 2016 Referendum and House of Commons motion are irrelevant to the scope of prerogative power.41 Thus, Lord Carnwath’s dissent does not, in my view, diminish the force of the majority’s decision.

The Membership status of the UK in the WTO,4243 and its later relationship with the EU44 are also subject to further debate in Parliament. The tension between the conflicting withdrawal obligations from the EU and accession requirements of the WTO,45 particularly in relation to the negotiations over the Schedules, will be the subject of interest in the future. In sum, the road forward is an uncertain one. These are unchartered waters and the UK Government will have to tread carefully on the dreams and aspirations of the citizens it represents on the international plane.

Conclusion The Miller case has been the subject of significant political and legal criticism. Understandably, some may have reservations about the legal bases for the majority’s opinion on the distinction between the content and law-making procedures of EU law under the ECA. In particular, Lord Reed and Professor Elliott made forceful arguments against the pertinence of such a distinction in the Miller decision and the broad constitutional arrangement of the UK. However, my overall view is that the majority has made a comparatively more compelling case for the relevant limits of the prerogative, which cannot be exercise in a way which amends, nullifies or frustrates domestic legal rights without Parliamentary approval.

In other words, one could argue that the dicta of Lord Dyson MR in Shindler on withdrawal may not be applicable, in pari materiae, with the revocation of such withdrawal.

37 G. Phillipson, A dive into deep constitutional waters: article 50, the Prerogative and Parliament (2016) 79(6) MLR 1064-1089 38 Phillipson, at p. 1089, where he writes that, Parliamentary and judicial controls of Executive action are not “antagonistic alternatives”.

39 In the dissenting opinion of Fire Brigades Union, at 520, the minority argued that if Parliament did not immediately bring Acts of Parliament, or certain provisions contained within, into force that we may presume Parliament did not intend to impose any limits or fetter upon the Executive’s prerogative in that respect. Tomkin argues the same in A. Tomkins, Public Law (Oxford: Clarendon, 2003) 28-30.

40 Phillipson, at p. 1089 41 Lord Pannick QC, Transcript, Article 50 – Brexit Hearing, Day 2, 155:17-25, <https://www.supremecourt.uk/docs/draft-transcript-tuesday161206-four-page.pdf>, accessed 5 February 2017 42 Technical Note on the Accession Process, WT/ACC/10, 21 December 2011, at pp. 10-11, suggests that it will take an average of six years or less for the UK to accede to the WTO Agreements, with the latter being more likely given that the UK has an existing Schedule with the WTO 43 J. Wouters and B. De Meester, The World Trade Organisation: A Legal and Institutional Analysis, (Intersentia, 2007), at p. 154, whilst the UK is an original member of the General Agreement on Tariffs and Trade 1947 (“GATT”), the learned authors view this distinction between ‘original’ and other Members as legally vacuous.

44 On possible Free Trade Agreements with the EU, see AG Sharpton, Opinion procedure 2/15, Request for an Opinion pursuant to Article 218(11) TFEU — Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore — Allocation of competences between the European Union and the Member States (“Opinion 2/15”), 21 December 2016, <http://curia.europa.eu/juris/document/document.jsf?text=&docid=186494&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=641650#Footnote1>, accessed 3 February 2017; This concerned whether the EU has the exclusive competence to conclude a FTA with a third state, where the agreement extends beyond those covered by the World Trade Organisation (WTO) agreements.; See, in particular, Opinion 2/15, at [90]-[93], [103], [107] and [110]; Arts. 3 and 4 TEU 45 On the interaction between the legislative competences of the EU and the obligations of the EU and its Member States to the WTO Agreements, see K. Lenaerts and P. Van Nuffel, Constitutional Law of the European Union, (London, Sweet & Maxwell, 2005), p. 841.

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Contributions of Roman Jurists to the development of Roman Law

by Claudia Quek, University of Cambridge In this paper, I seek to explore the contributions of the Roman jurists to the development of Roman law. I will ar-

Meanwhile, the jurists produced legal writing: collections of forms and responsa, commentaries

gue that it can be generally be maintained that the jurists in the Republic period made a considerable contribution to the development of Roman law, the classical jurists made a significant contribution and the post-classical jurists made only a minimal contribution. Specifically, I will consider how juristic interpretation changed from the Republican to the Classical period, the effect of the ius respondendi and judicial teaching in the classical period, and the decline of legal writing in the post-classical period. Nonetheless, I will also argue that late republican jurists had a larger contribution than mid-republican jurists. Likewise, the level of contribution made by jurists changed throughout the classical period as the Emperor became more involved with juristic activity.

on the XII Tables and general treaties on civil law.2

Contributions of the Roman Jurists in the Republic Period In the republic period, the jurists made a considerable contribution to the development of Roman law through juristic interpretation. Juristic interpretation could be found in the responsa and legal writing of the jurists. The republican jurists gave advice (responsa) to magistrates â&#x20AC;&#x201C; including judges, praetors, provincial governors and advocates, to members of the senate and to ordinary citizens. Through the work of the magistrates and the administration of litigation and drafting of edicts by the praetors, juristic interpretation took legal effect.1

It is worth recognizing that the republic period spans across 482 years; juristic interpretation contained in responsa and legal writing and its contribution to the development Roman law should not be seen as uniform and unchanging throughout this period. The jurists of the mid-republic (approximately two centuries after promulgation of XII tables), interpreted the law in a practical and unreasoned way: they provided information on the law merely with observation that some earlier jurists had said the same.3 This passive manner of interpretation meant that the mid-republican jurists rarely altered the law, and thus contributed in only a minimal way to the development of the law.

Beginning in the 2nd century BC however, under Greek scientific and cultural influence, the late republican jurists began to incorporate observations of differentiae and methods of dialectic and logical analysis into their interpretation of the law. With this, they made a considerable contribution to the development of the law. Professor Alan Watson, in his lecture on the limits of juristic decision in the later Roman republic,4 argues that juristic interpretation contained in responsa and legal writing stood alongside legislation and edicts as a source of law in the late republic. This might be a bit of an overstate-

Schulz, F. (1946). History of Roman Legal Science. Oxford: Clarendon Press, p. 53 Thomas, J. (1976). Textbook of Roman law. Amsterdam New York: North-Holland Pub. Co. 3 Schiller, Arthur A. "The Nature and Significance of Jurists Law." Boston University Law Review 47 (1967): 20-39. Print.

4 Watson, Alan. "Limits of Juristic Decision in the Later Roman Republic." Inaugural Lecture. University of Edinburgh. 1969. Lecture.

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ment, since legislation is generally binding whereas juristic interpretation contained in responsa and legal writing is not. Nonetheless, juristic interpretation was highly respected and was often put into legal effect by the magistrates in the performance of their duties and praetors in the drafting of edicts. Therefore, it did have the opportunity to alter the law and expand or reduce its ambit. For example, in the XII tables, it was enacted that one can collect his glans which had fallen onto his neighbour’s land. While the first meaning of glan was “acorn”, jurists of the late republic expanded its meaning to “fruit.” In other circumstances, the late republican jursts have also used interpretation to reduce the ambit of the law: while the XII Tables established actio finium regundorum, jurists of the later republic decided that this would not apply in the city but only in the country.

While scholars like Schulz and Ankum argue that the jurists favoured strict interpretation, it is clear from the examples above that the late republican jurists were willing to make original interpretations too, contributing considerably to the development of Roman law.

law. However, expanding the ambit of Roman law by interpretation was taken a step further in the classical period.

Nevertheless, it is worth acknowledging that although the late republican jurists certainly made considerable contributions with important implications for Roman law that lasted into the early years of the Empire, the longterm implications of these contributions are debatable.

In fact, of the 39 writers quoted in Justinian’s Digest (533 AD), only Q. M. Scaevola, Alfenus and Aelius Gallus are from the Republic.5

According to Rudolf Sohm’s Institutes,6 it was practice for the classical jurists to base responsa upon the ratio legis. In other words, they often derived general principles which underlay a large number of distinct remedies.

Paul, in particular, was one such jurist, devoting much of his work to seeking the ‘big picture’ in Roman law. This is especially clear with regards to his treatment of the innominate contracts. He argued that anything that arose in these following forms can be an innominate contract: either I give to you in order that you give, or I give that you do, or I do that you give, or I do that you do,7 thus identifying a general theory that gave the Roman law of contracts a more cohesive character. As a result of the increasing emphasis on ratio legis, the classical jurists would derive a series of new rules from the major premise of an existing rule. Ulpian himself confirms this in D. 1.3.13: “For…whenever this or that is provided by statute there is good opportunity for other rules which involve the same beneficial principle being supplied… by interpretatio.” Ulpian also comments in D. 1.3.12 that it was acceptable to “extend the rule to analogous cases (similia).” The use of analogy by the jurists essentially established new law, without any regard to the original intent of the legislator. Nevertheless, it cannot be forgotten that the works of Ulpian have been subjected to post-classical alterations. Therefore, his quotes cannot be given too much weight.

Contributions of the Roman Jurists in the Classical Period While the work of the classical jurists was essentially a continuation of that of the Republican jurists, it was the classical jurists who gave Roman law its distinct character. During the classical period, juristic interpretation was also contained in responsa and legal writing, and remained an important contribution to the development of Roman law. Classical jurists continued to give advice, elucidating difficulties in the law, delimitating the scope of available remedies. In legal writing, the jurists extensively considered actual and hypothetical cases. Similar to the republic period, the jurists, by interpretation, articulated through responsa and legal writing, altered the

While the republican jurists relied on magistrates and praetors to put juristic interpretation contained in responsa into legal effect, the classical jurists had a much more powerful mechanism to give legal force to their responsa. Therefore, while republican jurists could only make a considerable contribution to the development of Roman law, classical jurists had the means to make a significant contribution. Under the reign of Augustus (27 B.C. – 14 A.D.), ius respondendi was implemented, and rights were conferred on some jurists to give responsa with the Emperor’s authority.8 The exact legal effect of the ius respondendi is uncertain. Borkowski argues that responsa given by a jurist with ius respondendi was to be “regarded as highly persuasive, if not strictly binding.”9

Thomas, J. (1976). Textbook of Roman law. Amsterdam New York: North-Holland Pub. Co. Sohm, Rudolf, James Crawford Ledile, and Berhard Erwin. The Institutes of Roman Law. N.p.: Oxford, Clarendon, 1892. Print.

7 D.19.5.5.pr 8 Schiller, Arthur A. "The Nature and Significance of Jurists Law." Boston University Law Review 47 (1967): 20-39. Print.

9 Borkowski, Andrew, and Du Plessis Paul J. Textbook on Roman Law. Oxford: Oxford UP, 2005. Print.

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In contrast, Nicholas contends that Augustus did not intend to make responsa formally binding, rather, he simply wished to identify the eminent jurists.10 Nicholas’s view is preferred, as it is unlikely that Augustus – who was generally unwilling to tamper with past practices – would have made such responsa binding. In any case, it can be agreed that the ius respondendi increased the persuasiveness of responsa, increasing its status, giving the jurists, in theory, a more direct influence in the development of the law. Even if responsa were not legally binding under ius respondendi, a magistrate or praetor would certainly not lightly disregard a jurist under imperial authority. However, Thomas11 reminds us that, the respondendi would “inevitably have made for… imperial supervision of juristic activity.” In fact, by the end of the 1st century AD, certainly by the time of Hadrian, jurists had become a “professional class linked with the government.” Therefore, Professor A. Arthur Schiller’s argument that, “…the emperor, partake of the exercise of interpretatio, but most of this development still remains in the hands of the jurists”12 seems to overlook the limits that the Emperors actually placed on the jurists. While jurists under ius respondendi indeed had a greater power to contribute to the development of Roman law, that power was inextricably tied to the government, and thus the classical jurists had less freedom to chose what kind of development they would effect in the law.

Juristic teaching was another dimension that was present in the classical period but was not common in the republic period. Juristic teaching was another factor that made the classical jurists’ contribution to the development of Roman law a significant rather than a merely considerable one. Labeo and Capito set up for the first time, rival sects – the Procluian and Sabinian Schools.

Pomponius, in Manual, sole book, outlines the basic difference between the two sects: “For Ateius Capito preserved with the line which had been handed down to him, whereas Labeo… set out to make a great many innovations.” While this rivalry had faded in Hadrian’s reign, it certainly would shape Roman legal thought for many more years. In addition, Gaius, in his Institutes, classified the law into the Law of Persons, Things and Actions – a classification that would be adopted, not only by Justinian in his Institutes, but also by lawyers today. Neverthe-

less, although this was certainly a significant contribution to Roman law, Professor D J Ibbetson argues that it was not necessarily a positive contribution – Gaius’ classification created the unfortunate separation between law and procedure.

Contributions of the Roman Jurists in the Post-Classical Period The post-classical era was marked by the decline of the jurists. Juristic contribution to the development of Roman law was minimal in this period. Legal writing in the West was limited to making abridgments – as evidenced by texts such as Epitome Gai – and the collation of extracts (e.g. Pauli Sententiae, Tituli excorpora Ulpiani).

Imperial decrees and codes of barbarian conquerors came to surpass the work of the jurists. In the East, the post-classical jurists maintained a greater continuity with the classical jurists than in the West, but they were also unable to provide any substantive contribution to the development of the law. In particular, the Law of Citations – recognizing the works of Ulpian, Papinian, Paul, Gaius and Modestinus as authoritative and unrivalled, shifted Roman law to one based on majority13 rather than reason, signaling the death of juristic contribution to the development of the law.

Conclusion While the jurists made a significant contribution to the development of Roman law in the classical period compared to a considerable contribution in the republic period, it must be acknowledged that with the Emperor’s increasing influence in juristic activity, the classical jurists had less control over the kind of contribution they could made to the law. Furthermore, the contributions of late-republican jurists should not be underestimated. Nonetheless, while the jurists only made a minimal contribution in the post-classical period, their introduction of scientific and logical principles to the law had a long-lasting influence. Roman law certainly would not have developed as well as it did, nor would it form the basis of the many civil law jurisdictions today without the work of the Roman jurists.

Nicholas, Barry, and Ernest Metzger. An Introduction to Roman Law. Oxford: U, 2010. Print.

Thomas, J. (1976). Textbook of Roman law. Amsterdam New York: North-Holland Pub. Co. 12 Supra n. 3 13 If in conflict the majority view applied, if even Papinian’s view would apply.

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ROMAN PAPER Ritual and Conveyance

by Edward Low, University of Oxford

In this paper, I seek to do the following. Firstly, I will provide a description of mancipatio and jure in cessio, and will attempt to trace the historical context from their origins to their eventual disuse. Secondly, I will analyze these two modes of conveyances from a perspective of their usage as formal procedure, and from a perspective of their use of legal fiction. Thirdly, I will consider a few speculative and possibly interdependent reasons why mancipatio and jure in cessio fell into disuse by the time of Justinian's rule. The reasons not only pertain to their nature as formal procedures and their use of legal fictions, but include an analysis of evolving socio-economic circumstances. Owing to a lack of historical certainty, it is unlikely that any conclusions regarding their eventual disuse can be definite, but I seek to give a fair evaluation of the theories nonetheless.

Mancipatio, jure in cessio Mancipatio most likely first originated as an actual sale, but its primary use in Roman law was as a formal means of conveyance of res mancipi. Res mancipi includes land and houses in Italy, slaves, cattle, and rustic servitudes,1 and are distinguished from res nec mancipi in that ownership (or dominium) of the former could only be transferred through prescribed legal formalities like mancipatio or jure in cessio.2

As only those who possessed commercium could become dominus, mancipatio was therefore an ius civile mode of transfer, meaning that it was only available to Roman citizens3 (or foreigners that possessed commercium), who were said to obtain their title ex jure quiritium.

The procedure involved in mancipatio was as such: five witnesses or more witnesses of Roman citizenship had to be gathered, along with a libripens (a citizen holding a set of scales) to witness a fictitious sale. The fictitious purchaser (the transferee) had to hold a piece of bronze in his hands and assert his dominium with the statement akin to vindicatio: "I declare that this man belongs to me by my right as a Roman citizen, and let him be purchased by me with this piece of bronze, and bronze balance." He then strikes the scales with the bronze and gives it to the fictitious seller (the transferor).4 In the case of movables, mancipation could only take place in their presence, and specifically, the amount that the transferee could grasp in his hands. Land, on the other hand, could be symbolically represented by any clod of earth5 - it need not be from the very land being mancipated.

Like mancipatio, jure in cessio was another highly formal mode of conveyance, through a fictitious lawsuit. Both

G.2.14a.

G.2.22.

3 G.1.119. â ´ Ibid.

5 G.1.121.

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parties had to appear before a magistrate, and the transferee had to hold the property in his hands while asserting his quiritarian right to it. The magistrate interrogates the other party as to a counter-claim, and if he does not do so or remains silent, the magistrate then adjudges the property to the transferee.6 Jure in cessio could be used to transfer res mancipi and res nec mancipi, but most chose to transfer the former by mancipatio as it was more convenient7 and the latter by traditio. The chief and unique use of cessio was with regards to its ability to create or transfer incorporeal things.

Both mancipatio and jure in cessio preceded the Twelve Tables,8 though it is not definitively clear which of the two was older.9 Mancipatio was most likely abolished by desuetudo before the fourth century;10 jure in cessio had certainly faded in importance before Justinian as there is no mention of it in the Justinian Code. Eventually, Justinian formally abolished all distinction between res mancipi and res nec mancipi.11 Form: For its own sake It was precisely because of the formal natures of mancipatio and jure in cessio that Roman law demanded that dominium of res mancipi had to be transferred by their usage. While the distinction between res mancipi and res nec mancipi increasingly became a merely technical one as Roman society evolved,12 it could be inferred from the list of what constituted res mancipi that the property was simply that which was useful or essential to the household in an economically undeveloped, early agrarian society:13 'the most important means of production of a peasant economy belonged to the res mancipi. Slaves, horses, oxen, asses, and mules furnished the indispensable manpower, while the land and the appertaining praedial servitudes served as a basis for the subsistence of the family'.14

Gerhard Dulckeit offers a vital distinction15 between an early understanding of formalism and our modern conceptions. Formalism in the modern context is usually perceived as an accompaniment to a legal act (in this case, a conveyance) and is usually introduced for specific policy considerations. This could certainly serve as a good explanation why mancipatio required at least five witnesses, and at least partially why jure in cessio had to involve a magistrate - so as to create a public means of transfer that could easily be challenged if carried out in error, and to serve as an enduring means of proof of conveyance.16 However, it serves as an inadequate explanation of why in a mancipatio, the unique involvement of the libripens was essential. I posit that Dulckeit's distinction is applicable to mancipatio (and jure in cessio) as a whole: that it is the form itself that creates the legal effect. This is thus the difference between 'Wirkform' (effective form) and 'Schutzform' (protective form). In the former, the formal legal act (conveyance) itself is the reason for the legal effect (transfer of dominium), and is not merely just a tagged on policy requirement.

Where then, did such formalism originate from? Zimmerman theorises that this concept of form was premised in a primitive belief of its magical nature. Formal rituals were devised by state priests who took on a dual responsibility of sacral and legal affairs. It can be seen by analogy from the legis actiones that 'the uttering of precisely set, formal words, often reinforced by the performance of symbolic acts'17 constituted a compliance with the ritual formalities that itself brought about 'real' legal effects, and conversely a minor superficial (formal) slip would render the entire substantive process invalid.

It is vividly illustrated in Gaius:18 These actions which the ancients employed were so designated, either for the reason that they were provided by

G.2.24.

G.2.25. ⁸ Paul. in Vat Frag. No. 50.

9 William Alexander Hunter, ‘A Systematic and Historical Exposition of Roman Law in the Order of a Code’, p. 260.

10 Maria Nowak, ‘Mancipatio and its life in late-Roman Law’, p. 121.

11 J.2.1.40.

12 J.I. Clark Hare, ‘The Law of Contracts’, p. 68.

13 George Mousourakis, ‘A Legal History of Rome’, p. 215.

14 Gyorgy Diosdi, ‘Ownership in Ancient and Preclassical Roman Law’, p. 57.

15 Gerhard Dulckeit, ‘Zur Lehre vom Rechtsgeschaft im klassischen romischen Recht’, in: ‘Festschrift fur Fritz Schulz’, vol. I (1951), p. 160 sqq.

16 Supra n. 12, p. 71.

17 R. Zimmermann, ‘The Law of Obligations - Roman Foundations of the Civilian Tradition’, p. 83.

18 G.4.11.

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the law — although at that time the edicts of the Prætor, by means of which many new actions were introduced, had not come into use — or, because they followed the words of the law, and therefore, like the law itself, were observed without any alteration. Hence, it was decided that, a person who brought an action against another for cutting his vines, and in the pleadings called them "vines," should lose his case, as he ought to have called them "trees," because the Law of the Twelve Tables, under which the action for cutting vines was brought, speaks in general terms of the cutting of trees.

However, in 'Formalism, Symbolism and Magic in Early Roman Law', MacCormack rejects the notion that formal ceremonies such as mancipatio and jure in cessio originated due to a need for strict adherence to magical beliefs.19 However, this does not fundamentally change the nature of my argument as there is no real need to reason from such magical principles. The origins of mancipatio's specific formal procedure is surely, at least on top of everything else, a symbolic enactment of a factual state of affairs20 (a sale), and the symbolism involved is fairly apparent as Gaius makes clear:21 A piece of brass and a balance are employed for the reason that in former times only brazen money was in circulation ... as we learn by the Law of the Twelve Tables. The value of the purchasing power of these coins was not estimated by their number, but by their weight...

Whether or not the origins of mancipatio were indeed magical, reliance on it as 'Wirkform' could nonetheless proceed unhindered.

Form: A result of a limitation in legal reasoning In the previous subsection, I advanced the theory of how form was itself the effective reason for the transpiration of legal effects by examining the magical and/or purely symbolic historical reasons which grounded the formal yet substantive procedure. Here, I approach the issue from a slightly different angle.

It was stated that a formal conveyance like jure in cessio would necessarily fail if it failed to adhere to a strict pro-

cedure as defined by a set of actions and words. However, the converse is also true: dominium would necessarily be transferred regardless of any modern notions of a lack of consent, as long as formal procedure was properly followed. For mancipatio,22 jure in cessio, and stipulatio,23 it was completely irrelevant whether or not the conveyances were performed under fraud or duress - their validity could not be impugned on such grounds.

This is surely shocking from a modern perspective. How could the strict adherence to form take precedence over whether the legal effects were, in fact, willed by the parties? Such policy seems obviously fundamentally inequitable, as we can readily imagine plenty of scenarios where there is a gap between a legal declaration and a desired result. However, such legal phenomena was illustrative of the fact that Roman jurists at that time, that is, before the Republic, were unable to conceive of any discrepancy between will and word. The key reason for the legal result in a stipulatio was not due to any notion of consent between the parties, but instead the formal exchange of words. To the Roman jurists, 'the true will of the parties could be discovered only from the words'.24 By analogy, I hypothesize that it was the very formal actions and oath of vindicatio asserted in mancipatio and jure in cessio which displayed the true will of the parties, and hence could not be invalidated on legal grounds of fraud or duress. The legal thinking during the early stages of Roman law was slow in the regard of admitting the reliefs associated with the nature of consent as we understand it today - for instance, it was only later during the Republic that the praetor allowed parties to take action against a stipulatio formed under fraud or duress.

Zimmerman attempts to offer an explanation as to whether or not such a strict conception of the necessity for formality with respect to stipulations was as harsh to the Romans as it seems to us in the modern day. His argument is that our perception of the principle as such is harsh proceeds 'from the supposition that the parties really wanted to be bound under those circumstances and merely somewhat carelessly neglected to observe the form'. But, he argues, that practically speaking, non-compliance with the form usually signified in fact

Geoffrey MacCormack, ‘Formalism, Symbolism and Magic in Early Roman Law’, p. 446 Ibid.

21 G.1.122.

22 William Warwick Buckland, Arnold D. McNair, ‘Roman Law and Common Law: A Comparison in Outline’, p. 276.

23 Alan Watson, ‘The State, Law, and Religion: Pagan Rome’, p. 34.

24 Supra n. 17, p. 84.

19 20

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the intention of the parties not to be bound, and vice versa, owing to its 'simple and uncomplicated nature ... so familiar to every Roman citizen'. Furthermore, as legal transactions in early societies were relatively rare, they were approached with 'gravity and concentration', and hence when one considered 'the importance of the act, one therefore did not mind the demands made upon the parties' precision and attention'.25 But while Zimmerman's argument might alleviate concerns regarding stipulatio in a limited scope, it does not address other important issues. For instance, it is not clear how 'gravity and concentration' addresses the issue of duress being perversely legitimised through a formal, legal conveyance. Furthermore, keeping in mind the example of Gaius' discussion26 of following the exact words of law in the legis actiones procedure, one could hardly say that a non-compliance with form signified a party's desire to lose the case on purpose and without redress too, as the claim would have been 'consumed' and could not be brought again. That would be absurd.

deposit, chance of ritual shaming (flagitatio), it is no wonder that as a matter of public policy, it would have been desirable to reduce uncertainty as to the outcome of a legal dispute as much as possible to encourage parties to settle out of court.

In addition to considerations of preventing lawsuits, another need for a wide range of publicity could arise from the unique Roman understanding of the rights in rem. In the case of mancipatio and jure in cessio, it is quiritary ownership or dominium that is being transferred. A modern conception of a property right would be, for instance, my right to the property, and understood in that single link between myself and the property alone. But the Roman conception of rights in rem includes the potential for me to enforce my right to the property against all of the world - indeed, anyone who withholds the property from me. For such a reason, it is important that my new status as dominus should be made as public as possible.

Form: An exercise in policy In his article on 'Consideration and Form', Fuller outlines three functions of legal formalities, and although he does not tailor all of these functions specifically to Roman concerns, I will attempt to demonstrate that these principles of policy achieved through legal formalities are ageless.

The second function is that of a cautionary or deterrent nature. This was necessary so as to serve as a check and a brake on any rash action that a party might take.

This is usually achieved by necessitating an activity that is likely to put the parties involved in a 'circumspective frame of mind appropriate in one pledging his future' as would be the case in most uncommon rituals as Zimmerman points out,28 or alternatively, indirectly giving the parties time to contemplate their decision, as would be the case if one had to source for witnesses and a libripens, or get hold of a magistrate. As discussed, the likely property being conveyed is res mancipi and would have been of sufficiently vital importance to require the existence of this function.

The first function performed by a legal formality is to provide 'evidence of the existence and purport of the contract, in case of controversy'.27 Fuller specifically mentions the stipulatio which consisted of an oral spelling out of a promise so ceremonial it made its terms clear to participants and possible bystanders - it is not too hard to see its applicability to mancipatio and jure in cessio. Especially when one considers that lawsuits in Roman times were by and large expensive, time consuming, and risky affairs owing to a possible need for a

The final function is described by Fullre as the channelling function: the legal formality 'furnishes a simple and external test of enforceability'. The distinguishing factor for contracts and conveyances in particular is that the legal formality is deliberately used so as to create a legal framework for the party to fit his intentions or use as a channel of 'legally effective expression of intention'.29 This is speculative analysis, but it could be possible that by limiting the transfer of ownership to formal modes of conveyance, it helped Roman citizens make abundantly

Thus, we can see that the rigidity in legal reasoning on the part of the jurists in pre-Republic Roman law resulted in a formalism which produced rather unjust and inequitable results.

Ibid.

Supra n. 18.

27 Fuller, â&#x20AC;&#x2DC;Consideration and Formâ&#x20AC;&#x2122;, p. 800.

28 Supra n. 24.

29 Supra n. 27. p. 801.

25 26

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clear their intentions with regards to possession as opposed to ownership in the case of res mancipi. Thus for instance, it allowed a Roman citizen loan to another citizen land without either party mistakenly believing that ownership has been transferred.

Fiction: Two definitions Fuller defines fiction in current usage as either: 1) A statement propounded with a complete or partial consciousness of its falsity 2) A false statement recognized as having utility30 In the previous subsections I have shown the second definition to be largely true, and will now deal with the first. While we can take for granted that mancipatio's fictitious sale and jure in cessio's fictitious lawsuits are prima facie fictions, it is interesting to note that even the statements that the transferee engages in during the course of the conveyance are in fact knowingly false. When the transferee asserts his vindicatio over the property in the jure in cessio, not only is the property not yet his, but it is entirely conditional on the transferor having no objection - which is when the magistrate adjudges it to him. This juxtaposes quite strongly with the usual kind of Roman fiction which carries a grammatical acknowledgement of its own falsity - for instance, the fiction of treating a foreigner as a citizen would have the following form: 'If, in case Aulus had been a Roman citizen, such a judgment ought to have been rendered, then render such a judgment.'31 Fiction: Playing a role I agree with Ihering that the role which the fictions of mancipatio and jure in cessio are engaged in was originally one of 'making lighter the difficulties which are connected with the assimilation and elaboration of new ... legal principles',32 and I posit that the concept of res mancipi is the new principle in question. Mancipatio was a an old legal transaction (sale) that was institutionally converted to a new use;33 while jure in cessio purges the original 'legal transaction of requirements necessary to its original purpose'.34 I hypothesize that the end goal was

to set apart res mancipi as a distinctly important type of property without 'discommoding current notions'.35 This is done through deliberate symbolic nods to the most familiar, intuitive, and unequivocal pre-existing grounds for a designation of dominium: sale, and adjudication by a magistrate. It would be unsurprising for commerce and the judiciary to form the cornerstone of the Roman layman's understanding of a transfer of ownership.

However, such a theory is at best speculation and is impossible to historically verify. Examining the historical and linguistic background of quiritary ownership, the origin of private property and ownership lay in the spoils of war (as affirmed by Gaius: 'for whatever was taken from an enemy a man considered to be absolutely his own'),36 and the spear was the symbol of dominium ex jure Quiritium. One could interpret mancipatio liberally as Hägerström does in his theory that mancipatio's gesture of seizing the object with both hands was akin to the capture of booty in war (iustum pimque bellum), and would, in combination with words, magically bring about iustum dominium,37 or that jure in cessio is explained by the validating presence of the symbolic spear set up in the Centumviral Court,38 but such theories are rather fanciful, and hence their practical success in adhering to Roman conceptions of quiritary dominium is speculative at best.

Increasing economic complexity I will now consider a few theories as to the decline in the usage of mancipatio and jure in cessio.

By the time of the Punic wars, Rome's social and economic structure was no longer agrarian, but was instead built on commerce and finance.39 Res mancipi was, therefore, no longer vital to the survival of a household. Furthermore, with a greater reliance on commerce and trade, it would therefore have been necessary for transfer of property to take place extremely quickly and efficiently in order to respond to changes in the marketplace. A parallel can be seen in Archaic Greece where the practical advantage of monetary exchange becoming simpler,

Fuller, ‘Legal Fictions’ (part one), p. 369.

Ibid, p. 390.

32 Fuller, ‘Legal Fictions’ (part two), p. 522.

33 Ibid, p. 533.

34 Ibid, p. 534.

35 Ibid, p. 523.

36 G.4.16.

37 Supra n. 19, p. 452.

38 Supra n. 9, p. 259.

39 Supra n. 17, p. 48.

30 31

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faster, and far more efficient by removing the need for weighing was one of the driving reasons for the switch from bullion to a minted currency.40 Further evidence of this need can be inferred from the Roman reluctance to list newly discovered beasts of burden as res mancipi.41 The troublesome and time-consuming nature of the formal conveyances were most likely increasingly seen as more troublesome than worthwhile, and hence explained how traditio came to be valued over the more formal conveyances in delivering res mancipi.

Indulging in further fiction In 67 BC the praetors introduced the actio Publiciana, and it is highly likely that this hastened the disuse of mancipatio and jure in cessio. This allowed the transferee of res mancipi which had not been transferred through a formal conveyance to bring a fictitious vindicatio against anyone, including the quiritary dominus himself, even if the property had not yet been usucaped.

This particular right made the transferee a bonitary owner.42 The actio Publiciana allowed the bonitary owner to bring a formula containing the fiction that the time required for usucapion had already run, in other words that the property would have became the bonitary owner's ex iure Quiritium in due time.43 The introduction of this particular fiction was most likely meant to resolve the absurd situation where a dominus would deliver by traditio a res mancipi with the context of a sale, and then promptly bring a vindicatio to claim back the property. As the Romans conceived of dominium as the ultimate legal title, it would thus have been difficult to reconcile the bonitary owner's justified right to the property with the dominium of the legal owner.

And thus the praetors allowed the fiction of time, where the acquisition of the property by usucapio would allow the bonitary owner to acquire dominium - the only means by which he could legally overcome the original dominus.

Hence, rather than changing the substantive legal understanding of dominium in order to give the bonitary owner a remedy, the praetors chose instead to employ

the 'easy mobility' of a further fiction. This was arguably, in Ihering's words, the 'first step'44 towards removing the practical distinction between res mancipi and res nec mancipi.

However, there are two problems with the theory. The first is that the introduction of the actio Publiciana was more likely a resulting symptom of Roman society's refusal to use formal modes of conveyance rather than an original cause per se, though it certainly would have accelerated its demise greatly.

Secondly, it is questionable how important the actio Publiciana was in preventing the dominus from trying to reassert his dominium. It served as a new legal barrier, but there were already practical barriers in place, such as developing a reputation for reneging on property transfers, and in the case of a sale, being sued with actio empti for a failure to fulfil the terms emptio venditio to protect the buyer from eviction.

Form as protection The actio Publiciana could have, in another light, been interpreted as the praetor allowing the bonitary owner to evade formal requirements. Coupled with the fact that not only were ineligible parties that lacked commercium taking utilizing mancipatio nonetheless,45 but the written memorandum of the mancipatio came to be relied on as conclusive evidence of mancipation, even if the ceremony had not actually taken place.46 From this we can infer that Dulckeit's 'effective form' was no longer the ruling principle of the day, but instead 'protective form' specifically the evidentiary purpose served by writing.47 The precipitation of this shift in legal mindset was most likely due two reasons. Firstly, the general increase in the use of writing due to Greek influence.48 Secondly, Zimmerman's theory that with the rise of informal contracts and the meeting of minds, the actual agreement of parties concerned became 'accepted increasingly as the cornerstone of and actual effective reason'49 for transactional and contractual obligations. I suggest that

Harris, ‘The Monetary Systems of the Greeks and Romans’, p. 37.

G.2.16.

42 G.2.41.

43 G.4.36.

44 Supra n. 32.

45 Maria Nowak, ‘Mancipatio and its life in late-Roman Law’, p. 113.

46 Ibid, p. 121.

47 Jolowicz, H. F.; Nicholas, Barry, ‘Historical Introduction to the Study of Roman Law’, p. 417.

48 Ibid, p. 414.

49 Supra n. 17.

40 41

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Zimmerman's theory is supported by evidence of the increasing role that commerce and finance played in the expanding Roman society, which would have, in Fuller's words, familiarized the Romans with 'definite, clear-cut business categories', and that it is 'for this reason that important transactions on the stock and produce markets can safely be carried on in the most 'informal manner'.50 With the only real practical use of form left being an almost purely evidentiary function which would nonetheless have been better served by writing, I have shown how the formal conveyances of mancipatio and jure in cessio became increasingly obsolete in an ever-evolving Roman society.

50

Supra n. 27, p. 806.

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INTERVIEW WITH CHAN LENG SUN, SENIOR COUNSEL Understanding Arbitration for the Aspiring Practitioner

by Benedict Tse, University College London

Arbitration has emerged as one of the most important and favourite dispute resolution mechanisms today. Its widely cited advantages of convenience, neutrality, informality and the attainment of “parties’ interests and consent”, are all the more conspicuous as commercial transactions become increasingly cross-border.

As a result of globalisation, there are fewer barriers for two parties on the other ends of the world to enter into contractual relationships. This has rendered litigation as a less favourable dispute resolution mechanism as no party will want to litigate in foreign hostile territory.

This is not to say that the courts are becoming obsolete; their importance is undeniable when it comes to enforcement of domestic laws and recognizing foreign arbitral awards.

As a branch of law that is not embedded in a particular legal system, but formulated purely based on parties’ intentions, basic contractual notions and private international law, arbitration has been viewed as intriguing yet elusive. It is difficult to grasp an exact notion of arbitration given the myriad of differences in arbitration laws across jurisdictions. Not only that, arbitrators are expected to be well-versed with the sector knowledge of the subject matter, and exude an imposing personality to reconcile the potentially different cultures, languages and interests between the two commercial parties.

Recent efforts in shoring up the SIAC and the arbitration scene in Singapore has paid off; Singapore now counts itself amongst the likes of arbitration hubs like New York, London and France. Arbitration is only set to increase in popularity. To the law student, arbitration may still be an arcane subject; not least because not all universities offer it as a subject, and most importantly, because it is

arguably a subject that can only be properly honed with practical experience.

Lex Loci had the opportunity to interview one of the most distinguished arbitrators in the region – Senior Counsel (SC) Chan Leng Sun from Baker Mckenzie Wong & Leow, to find out more about the practice of arbitration.

First, could you give a brief background of yourself and your journey to become the Head of Dispute Resolution at Baker McKenzie Wong & Leow, and Baker McKenzie’s Global Head of International Arbitration?

I was first admitted to practice in Malaysia in 1989. I then got a scholarship to do my LLM at Cambridge University. Tan Cheng Han, who later became Dean of NUS Law Faculty, was one of my course mates. He suggested for me to come to teach at NUS, and that was how I ended up in Singapore. Among the subjects I taught was International Business Transactions, which included an international arbitration component.

When I came out to practise with Ang & Partners in Singapore, my work was primarily court litigation with some arbitration. I had an interest in arbitration and supplemented my practical experiences with a lot of reading and research on the subject. I spent a few years working on my book, “Singapore Law on Arbitral Awards”. By the time I joined Baker McKenzie in 2011, I was already getting appointments as arbitrator. It was an unexpected honour to be approached to helm the Baker McKenzie Arbitration Practice Group, which has many leading practitioners. Many in fact have more experience than I do.

There is wonderful camaraderie in our Global Steering Committee and I continue to take helpful advice from the previous Co-Heads of Arbitration.

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As a disputes resolution lawyer, how would you compare arbitration, litigation and mediation?

Mediation is of course a different animal from either arbitration or litigation, in that it is a negotiation and settlement process facilitated by a mediator. Arbitration resembles litigation in that both are confrontational proceedings with a binding decision being rendered on the merits at the end of the day. You have a winner and a loser. Arbitration differs from litigation in a number of respects. It does not have a detailed rule book- so the skills and knowledge of the arbitrator are crucial in navigating procedural issues. As you may have heard, the rules of evidence do not apply strictly in arbitration. International arbitration is interesting because it assimilates the different practices and ethos of both common law and civil law traditions.

Can you tell us more about your experience with the United Nations Compensation Commission (â&#x20AC;&#x153;UNCCâ&#x20AC;?) and the UNCITRAL Working Group on Arbitration.

They were two completely separate experiences. I was on a 2-year contract as a Legal Officer with the UNCC in Geneva. The UNCC was set up by the Security Council to process claims made against Iraq for the invasion and occupation of Kuwait in 1990. These included claims by individuals, corporations and even governments. I was in the team that processed commercial claims, such as property damage or business losses. The legal team studied the claims, applied the methodology approved by the Security Council and helped the Commissioners

draft reports on their recommendations to the Security Council. I was not in the UNCITRAL Working Group as such, but I was an observer for the Singapore International Arbitration Centre (SIAC) who attended the deliberations of the Working Group on the revision of the UNCITRAL Arbitration Rules.

As an arbitration practitioner, you have to be familiar with different applicable laws and institutional rules. Did you find it difficult to pick these new sets of substantive and procedural rules when you first started practice?

What advice do you have for law students who would like to enter arbitration but have not studied the subject at undergraduate level?

I did not study arbitration law at either undergraduate or postgraduate level. It is possible to pick it up during practice and by personal research. I would recommend, however, attending one or two of the many courses offered by the likes of CIArb or SIArb because that is a much easier way to get a good overview of the subject. The laws of many countries and many institutional rules either follow or take into account the structure and principles of the UNCITRAL Model Law on International Commercial Arbitration. That makes it easier to operate in different countries or under different institutional rules. One should however not make any assumptions.

It is important to read the actual wordings of the arbitration laws and the institutional rules when dealing with a particular case.

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The SIAC has seen a spike in its caseload in recent years. What do you think makes Singapore such an attractive venue for arbitration?

Singapore is fortunate to have its crucial stakeholders united in a common desire to promote arbitration. The Judiciary, Parliament and the Executive are pro-arbitration, so you have consistency in judgments, legislation and government policies. SIAC has done great work over the years, to the extent that it is of interest to users and lawyers everywhere.

How do you think Singapore can remain competitive on a global level against traditional arbitration hubs such as London and New York?

It is not a question of taking work away but offering a good option for the growing number of arbitration cases.

Lawyers, arbitrators and counsel working with arbitral institutions such as SIAC must continuously aim for the highest standards in quality, responsiveness and integrity. Clients do have a number of choices when it comes to selecting seats. Singapore must continue to inspire confidence on all facets of an arbitration.

Most offshore firms have enthusiastically grown their arbitration practice in Singapore with the growth of SIAC and HKIAC. Do local firms have a role to play in promoting arbitration in Singapore as well?

Local firms in Singapore do very well in arbitration. The four biggest local firms in Singapore have sizable arbitration departments with respected arbitration partners. They may not have the extensive network or global reach of a big international law firm, but their senior practitioners play key roles in the development of Singapore arbitration and promote regularly in the region.

And finally, Leng Sun offers his simple two centsâ&#x20AC;&#x2122; worth on what he thinks is the best route that a law graduate may take to become an arbitration practitionerâ&#x20AC;Ś Work at a firm that has an arbitration caseload. Study on your own to improve your knowledge. Circulate and attend good arbitration forums to learn what is not written, publish your own articles and look for speaking opportunities to make yourself known.

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WHERE BRIGHT MINDS MEET

80

INTERVIEW ELSA - A truly European law experience

by Anusha Hegde and Charlotte Ng Jane Ting, University of Leicester and London School of Economics and Political Science

What is ELSA? Most of us studying law in the United Kingdom would assume that we are receiving an European legal education; that we are indeed European law students. However,

What prompted you to get involved with ELSA? Tell us more about your journey with ELSA. Anusha: I first joined ELSA Leicester as a member in 2014. It is one of the oldest local groups in the UK which

could we really claim to have studied law in Europe without being part of the European Law Students’ Association (ELSA)?

has been very active and dynamic since several years.

Being a Singaporean, I decided to get involved with the society in order to simultaneously expand as well as go beyond my legal education, and to make friends across Europe. Among other things, I was able to attend a National Council Meeting hosted by the Leicester committee of that year, led by then-President Nataly Papadopoulou, which helped to increase both my interest in and my knowledge of the internal workings of ELSA. Subsequently, I became the Vice President for Student Trainee Exchange Programme (STEP) for ELSA Leicester for 2015/16. This role gave me the opportunity to help students to apply for various legal internships across Europe, and that was also the year when I met Charlotte at a National Council Meeting in York and became friends with her.

ELSA is the world’s largest independent law students’ association. It consists of approximately 40,000 students. The birth of ELSA was in 1981 and it has continued to develop as an international, independent, non-political, non-profit-making organization today. ELSA is the perfect platform for law students to develop their existing skills, acquire new skills, and meet fellow students and legal professionals throughout Europe. Activities hosted by ELSA International include international delegations, the European Human Rights Moot Court Competition, the ELSA WTO Law Moot Court Competition and Legal Research Groups.

There are several universities in the United Kingdom which are home to ELSA Local Groups, including University College London, the University of Leicester, the University of Nottingham and the University of Queen Mary.

Activities held by the ELSA UK National Board include National Council Meetings and Essay Competitions.

Lex Loci speaks with Anusha Hegde, President of ELSA Leicester (2016/17), and Charlotte Ng Jane Ting, ELSA UK Director of Moot Court Competitions (2016/17) to learn more about their different experiences with ELSA.

This year (2016/17), I was elected to be the President of ELSA Leicester, which was an exciting experience for me because I was able to work towards executing my vision for the future of the society. My committee was more diverse than previous years’ committees in terms of the nationalities of the board members, which is one of the areas in which I had aimed for progress. We worked towards removing a common misconception among the law students in our university that ELSA was either only for European students or for those interested in European law. We were also able to work well together to

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organise many innovative events for our members such as a Study Visit to Barcelona, a Joint Social Media Conference with the GeekLaw Society in our university, as well as participating in an International Arbitration Summit in Vienna. On a personal level, since there are 6 law societies at the University of Leicester which have traditionally always been vying for members, I made an effort to collaborate more with the other societies’ Presidents and create events like joint socials so that we would all be able to work more constructively with each other.

Charlotte: I was first involved in setting up a local group at the University of Nottingham back in 2015, as Vice President of Academic Activities. We managed to attain observership status and then full membership status within the year. ELSA Nottingham also hosted its first National Council Meeting back in April 2016. These National Council Meetings are good opportunities to connect with other Local Groups and learn more about the activities which they are conducting for students at their university. I first met Anusha at the National Council Meeting in York in October 2015, and we have been friends since.

When I was commencing my LLM at the London School of Economics, I still wanted to be involved with ELSA, having made many friends in the network from the past year. I applied to be Director for Moot Court Competitions at ELSA UK. We were unable to set up a national moot court competition this year because of time constraints, but are looking to do so the following year. I also tried to involve myself in the many opportunities that ELSA International offers, such as international delegations, and represented LSE at the ELSA WTO Moot Court Competition.

Did you feel that being part of ELSA made you feel more like a European Law student?

Anusha: Yes, I have met many individuals (both students and others like academics or professionals) over the years because of ELSA, which definitely makes me feel more like a European Law student. The best part of this experience was having the opportunity to learn more and debate about various legal systems and cultural similarities and differences with other European students (both law and non-law), which enabled me to expand not only my legal knowledge, but also my knowledge in other fields like international relations, politics, economics etc. I feel that it would be a shame for any law

student studying in Europe to miss out on joining ELSA, because it truly provides students with a unique and enriching experience!

Charlotte: Definitely. Most of the other members on local boards are European students, so you will have the opportunity to learn more about their cultures by engaging in conversation with them. Through the various activities that I have participated in during the past two years, I have learnt so much more and made many new friends - if you want a truly international experience that complements your overseas education, I do not think there is a better avenue than ELSA. If you are taking a year abroad for your law degree at another European university, it is likely that they will have a ELSA local board, so it will be easy to get involved in ELSA activities! ELSA Nottingham was founded because the co-presidents both had experiences with ELSA during their Erasmus and felt that it would be a good experience to introduce to students at the University of Nottingham.

Tell us more about the activities that you’ve participated or organised in ELSA. Anusha: This is definitely a hard question for me considering the large number of ELSA activities I’ve been involved in! One memorable event which ELSA Leicester had this year was our ELSA Day event on 30th November 2016. ELSA Day is a worldwide celebration which focuses on different aspects of Human Rights every year, and this year’s edition specially focused on migration law education. With this in mind, my Vice President for Seminars and Conferences, Qinpei Lin, organised a documentary screening displaying the hardships faced by refugees seeking haven in European countries. This was followed by public lectures and a panel discussion by Professors Bernard Ryan and Mr Alan Desmond from the University of Leicester, as well as Mr Eric Nkundumubano from the British Red Cross Leicester. They helped to raise participants’ awareness about migration law, the current legal challenges facing the UK in this area and the migration crisis in Europe in general. This event received very positive feedback from the attendees and definitely contributed towards ELSA International’s vision of a just world in which there is respect for human dignity and cultural diversity.

Another notable event was an innovative Joint Social Media Conference co-hosted by ELSA Leicester and the GeekLaw Society of the University of Leicester on 9th 83

March 2017. This conference aimed to provide an exciting opportunity for attendees to gain a deeper understanding of the law behind social media, which is an increasingly sought-after topic since it covers everything from government surveillance and privacy to copyright issues. The first speaker at the conference, Dr Heather Anson from Digital Law UK, gave an interesting talk about growing governmental surveillance, as she and her organisation had been reviewing the recently-enacted Investigatory Powers Act 2016. The second speaker, Dr Paolo Vargiu, who is a lecturer at Leicester Law School as well as a qualified attorney and registered member of the Italian Bar, talked about the ownership of copyright in the social media era, from a corporate perspective.

The conference was well-attended by both students and some tutors, and the attendees were able to engage in an informative dialogue with both the speakers at the end as well. The success of the event was definitely an encouragement for ELSA Leicester to organise similar joint events with other societies in future.

Charlotte: I represented LSE at the the ELSA WTO Law Moot Court Competition, which has a completely different style from mooting in universities. Here, we appear before a mock Panel, and we refer to the â&#x20AC;&#x2DC;judgesâ&#x20AC;&#x2122; as panellists. We still do make submissions to the Panel, but the panellists are looking for a conversation rather than submissions. Since the moot involves knowledge on a rather niche area - international economic law, it is recommended that you undertake a course on it before commencing the moot. Even if you do study international economic law, the moot will definitely push you past your limits and you will find yourself learning a lot more about trade law after having done the competition.

There are a few stages to the moot court competition - firstly, written submissions for the complainant and respondent have to be submitted; secondly, all teams will participate in their respective regional rounds, making oral submissions; thirdly, the highest ranking teams from each regional round will participate in the final oral round to be held in Geneva, home to the WTO. Unlike most ELSA events, the moot court competitions tend to be more serious since most of the students will be focusing on performing well in the competition. Nevertheless, take the time to speak with the other teams! The experience at the final oral round was great, because you will have the opportunity to network with the panellists, who are acclaimed trade lawyers working in private

firms or in the WTO, and also Appellate Body members.

The semi-finals and finals are held in the WTO, and it is not everyday that you will have the opportunity to moot in the WTO! Tell us more about being part of an ELSA delegation.

You may apply to be part of an ELSA delegation via the delegations website (https://delegations.elsa.org/). It is a simple online application which requires a motivation letter. ELSA sends delegates to various United Nations organisations, such as UNCITRAL and WIPO, and other international organisations, such as the OECD. Anusha: Participating in an ELSA delegation was certainly one of the highlights of my university experience!

I was selected to be the UK delegate for ELSA attending the 119th Session of the International Covenant on Civil and Political Rights (CCPR) at the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva. My fellow ELSA delegates were from Greece, Germany, Poland and Turkey, and we all had an unforgettable week attending all the public hearings of the Session and interacting with various legal and political representatives from different countries. As ELSA representatives are seated with other NGOs, we could not raise any points during the public discussions, but were able to discuss our opinions during informal socials with other participants. Having studied International Law and Law and Political Theory in university, I had an interest in and basic knowledge of the struggles behind obtaining civil and political rights in countries such as Thailand and Bosnia and Herzegovina, both of which were presenting State Reports regarding this issue during the Session.

The Session also involved a discussion of one of the Articles of the CCPR regarding the right of countries to administer the death penalty, and it was very interesting to see the comprehensiveness with which all the national delegates considered the language and technical points associated with every section of the Article.

During our free time, my fellow delegates and I visited the UN Human Rights Council (UN HRC) and attended free public discussions about various topics such as the human rights situation in Yemen and how terrorism is threatening the existence of NGOs dealing with womenâ&#x20AC;&#x2122;s rights. We were also extremely lucky because an International Human Rights Film Festival was occurring in Geneva at the time we were there, so we had the opportunity to attend some film screenings in the 84

evenings after the Session on the CCPR had closed for the day. Furthermore, I was able to introduce my friends to the previous President of ELSA Leicester, Stephania Karasamanis, who was studying for her Masters in Geneva at the time. She showed us around the city at night and talked to us about her experience as an intern and representative for Cyprus at the UN HRC. This was a very valuable experience for us because it helped us to understand the global reach of the ELSA network and its impact on a diverse range of individuals. In short, being part of an ELSA delegation is definitely a privilege and it is recommended for those who wish to broaden both their legal and international points of view, while simultaneously making friends across Europe.

Segment. I felt that the content of this delegation was extremely interesting, as it involves UN Member States, UN organisations, and other humanitarian and development organisations to come together and discuss pressing issues as regards recent humanitarian concerns. ________________________________________ If you are interested in joining an ELSA local group or joining ELSA as an individual member, you may refer to more information on the ELSA UK website (http://elsa-uk. org/). Everyone at ELSA is friendly, so do not be afraid to ask if you have any queries!

Charlotte: Being part of an ELSA delegation is a one of a kind experience. I was appointed Head of Delegation for the ELSA delegation to an UNCITRAL Working Session on Cloud Computing and E-Commerce. The working session was held in New York, so it was a good opportunity to travel. ELSA does not cover travel or accommodation expenses for ELSA delegations, but you may apply to your university for a grant.

This delegation has been an enriching experience. Having not sat in such a session before, it was interesting to view and listen to the discussions of delegates from all around the world, expressing their different perspectives on the issues brought up during the session. All the delegates had depth of knowledge in the areas of cloud computing and identity management, and having the opportunity to hear them express their concerns, sometimes with specific examples from their countries, was very insightful. A particular point I found exceptionally intriguing was the emphasis that delegates placed on the use of language (whether in English or French) in expressing what was meant during their discussions, and ensuring that the appropriate words were used during the adoption of the working report during the last day of the delegation. If one wishes to work at an international organisation in the future or is interested in the particular topic discussed at a Working Group, I believe that attending a delegation would be a very meaningful experience. Even though I had limited knowledge as regards cloud computing and identity management and trust services, I had a greater understanding of these topics after the delegation was concluded.

I will be part of an ELSA delegation to UN ECOSOC in Geneva in June 2017, attending the Humanitarian Affairs 85

INTERVIEW WITH YA LAN CHANG AND DESMOND CHONG In pursuit of higher knowledge

by Charlotte Ng Jane Ting, London School of Economics and Political Science Upon completion of their legal studies, most Singaporean students would look forward to commencing their legal career. Yet, studying a Masters of Law (LLM) and continuing on a PhD may be more attractive to those who wish to further their knowledge of an area of law

Apart from that, however, I was not fulfilled by my job despite being paid quite a hefty salary. It became quite clear to me after some time that I really wanted to do an LLM. Not only did I miss the intellectual stimulation of being at university, where (broadly speaking) the law is

which they are particularly interested in. It also presents an opportunity for students who desire having an experience of studying in a different jurisdiction of law.

While further education is not essential for a legal career, some international organisations favour individuals who have attained a higher degree.

something to be discussed in abstract terms, not something to be applied in concrete cases; but I also found myself drifting quite far from my idealistic reasons for going to law school. So I decided to do an LLM: for the intellectual stimulation, and to focus on something that engaged and challenged me when I was in law school: human rights.

Lex Loci speaks to Ya Lan Chang and Desmond Chong to learn more about their experience of pursuing a doctorate and a masters degree respectively. ________________________________________ Ya Lan is currently a PhD student at the University of Cambridge. She has previously completed a LLM with a specialism in Human Rights Law at LSE, and a LLB at the National University of Singapore.

What prompted you to study a LLM and a PhD? After I graduated from NUS with an LLB, I followed the typical route of pupillage, getting called to the bar, and working in a commercial law firm. I worked as a commercial (at times criminal) litigator in one of the big 4 law firms in Singapore and it was one of the most challenging periods of my life. There were some aspects of it that I enjoyed: being a competitive person, I liked the competitive nature of litigation; I was put on a Court of Appeal case with a brilliant senior associate (who is now a junior partner) and that case was probably the most intellectually demanding file that I worked on; and I had a couple of criminal cases that reminded me of why I ended up going to law school in the first place - to fight for the underdog.

As for the PhD, I briefly entertained doing one when I decided to quit the law firm, but I wasn't sure yet whether my interest in human rights was practical or theoretical.

It was only when I was doing an internship at the International Criminal Tribunal for the Former Yugoslavia in the Appeals Division of the Office of the Prosecutor that I realised what I wanted from a career: near-complete intellectual freedom to advance my own arguments. While I would have liked to be a human rights litigator, my final foray into legal practice convinced me that, if I were to remain connected with the law somehow, it has to be in a theoretical fashion. That was what helped me decide to do a PhD. How did you decide that Cambridge was the place for you to commence your PhD? Cambridge has always been my dream school for reasons that are entirely unexamined and rather arbitrary. If I were to psychoanalyze myself, I would probably say that Cambridge was placed on a pedestal in my mind when I applied to read English in my first year of law school (I'd always wanted to study English literature and didn't like law school very much in my first two years) in 2006 and 86

was rejected, thereby creating this aura about Cambridge that added to its already considerable prestige. I applied again in 2012 to do the LLM but was rejected, so when I applied to do the PhD and was accepted, it was a dream come true.

Apart from those non-reasons, I was really attracted to Cambridge as a nucleus of intellectual activity. The Bloomsbury Group, for instance, gathered in Cambridge quite often. I am huge fan of Virginia Woolf and there are times when I am still amazed that I am studying at a university where she delivered two lectures that would later become one of the most powerful and yet accessible feminist polemics (A Room of One's Own). Cambridge also produced important philosophers like Bertrand Russell and Ludwig Wittgenstein. Some of my favourite writers also studied here, such as A S Byatt and Salman Rushdie. I like the idea of inheriting, in a sense, this illustrious intellectual tradition.

Why did you choose to specialise in human rights law?

In secondary school, my civics and moral education teacher distributed a copy of the Universal Declaration of Human Rights. I was about 14 and 15, and developing strong (albeit probably not very well-reasoned) views on political issues and current affairs. It has been 15 years and I still remember how awestruck I was, holding that flimsy computer print-out in my hand, intuitively convinced of the basic ideal that human rights enshrines: that human beings are free and equal in dignity and rights. I found this idea immensely powerful; it shores up the immorality and unjustness of all kinds of oppression.

I was also reading Harper Lee's To Kill a Mockingbird for English Literature at the time, so the issues of injustice and discrimination and the unequal treatment of fellow human beings based on morally irrelevant qualities, such as ethnicity, were things that I felt very strongly about back then. The ideal of human rights would redress all these problems; or at least, in theory, it would.

In my last two years of law school, I took a bunch of human rights-related electives, such as Human Rights in Asia, and they challenged my perception of human rights as universal standards that applied to all, simply in virtue of our being human. The Asian values challenge to human rights' claim to universality, for instance, disputes this universality and argues that these Western norms cannot be applied in a blanket fashion to non-Western contexts without regard to cultural particularities. This

supposed tension between the East and the West (using these terms loosely; I am not a fan of pigeon-holing cultures in such a reductive manner) was what interested me about human rights enough to pursue an LLM focused on rights-related issues. It seemed odd to me to say that some people should not be given the full range of rights just because they happened to be born in a certain part of the world, for surely the geographical location of these people should have no bearing on their status as free and equal human beings.

Of course, the issues are complex than this and I am oversimplifying; but that is what intrigues me about human rights. I think the general concept of human rights tells us a lot, and forces us to think, about what it means to be human. It is not just about what the state can or cannot do to its citizens; it is about why the interests that rights protect should be protected at all; and so it is really about what exactly it is that makes an individual human being worthy of respect simply because he or she is a human being. These questions also implicate other questions about morality, freedom, the relationship between the individual and society...I like thinking about these things, and human rights lends itself quite well to these abstract but actually very important questions, for the answers to some of these questions have fundamentally shaped the way some societies think about how individuals should relate to their community and the state. So there are practical consequences to these seemingly abstract ideas; but I must admit that I like thinking about them for their own sake, hence human rights law. (Though it should be quite obvious by now that my PhD is rather light on the law.)

What role do you think human rights law has in Singapore right now, and might it develop further in the near future?

My impression is that human rights is still quite controversial in Singapore, primarily because the government doesn't like it very much. Social issues such as the acceptance of homosexuality can't seem to get off the ground if framed in terms of rights. There's a general lack of rights consciousness in Singapore, I believe; this isn't necessarily a bad thing because too much rights talk could produce an adversarial and self-centred society, which would be undesirable anyway. But what is appealing about the language of rights is its empowering nature which gives added weight to what might otherwise be perceived as an ordinary claim. So we could 87

say that foreign workers deserve better treatment, but it seems more powerful to say that they have a right to a certain standard of treatment by their employers, or that domestic helpers have a right to a mandatory day off. The language of rights could illuminate the hardships and systemic problems faced by the less well-off in our society.

For now, though, human rights has a limited role to play in addressing social problems. I think the government needs to be less wary of rights, because they are not a zero-sum game between the state and the citizenry. My PhD is on how constitutional rights can promote community and nation-building, so I definitely do not subscribe to the commonplace liberal conception of rights as something antagonistic to be asserted against the state. So there is a lot of room to manoeuvre here. I may have a better answer when I'm done with the PhD though!

Tell us a bit more about the day-to-day life of a PhD student.

Library, library, library... I honestly think that my life would be as interesting to someone else as watching paint dry.

I typically get up at around 9am, have breakfast for an hour, go to the gym or go for a run, make some lunch, take a shower, go to my favourite cafe to take away a flat white, then go to the library at about 2pm (this is because I cannot function before 2pm). I stay there for four hours, then make some dinner, and go back again for two hours. Sometimes I play tennis in the morning.

Sometimes I meet friends for dinner in the evening.

When I meet my friends from the PhD programme, we usually end up talking philosophy because we are all kind of broadly interested in theoretical/philosophical approaches to the law (though 'law' is used very loosely here). It is a very insulated and kind of unreal experience; you spend most of your time in your own head, thinking about rather esoteric issues but which hopefully would make some impact on the society that you're addressing, and you kind of forget that this isn't actually normal, and that most people don't really care about what you're doing. But it hasn't been as lonely as I had been warned that it would be because I was fortunate to have met great people that I've clicked with, so that helps a lot with the inherently isolating nature of the PhD.

Did you notice any vast differences in teaching/mentoring at undergraduate, postgraduate and PhD level?

The PhD is your own original project, so you have near-complete freedom in shaping it; but because it is pretty much an unknown entity, which is in contrast to exams and set essays that follow a syllabus with set text, the mentoring and contact with supervisors is more intense and frequent, at least for me. There is less of an imperative to meet and talk to your professors at undergraduate and postgraduate levels to discuss your work, but there's definitely this imperative at the PhD level (at varying degrees of frequency).

What advice do you have for students or lawyers who are considering pursuing a PhD? You have to love your subject and topic. You have to believe in its point and purpose. You cannot go in half-heartedly because it is a huge commitment, not just in terms of time and money, but also mentally. Your life revolves around your PhD. There is very little over which you would prioritise your PhD. All this mental energy spent on the PhD can only not drive you crazy if you love and/or believe in it. When I get frustrated by my lack of progress or mundaneness of my daily routine, I remind myself that my PhD has a point; that I want to say something important and meaningful with it; and this is what keeps me going. ________________________________________ Desmond is a law graduate from the University of Cambridge and Harvard Law School.

Firstly, what prompted your application to do a LLM? I wanted to do the LLM because I wanted to consolidate my legal skills before I start work. The decision to apply was also made a lot easier because the Public Service Commission was sponsoring it.

Why did you choose to study a LLM in the US instead of in the UK, where you completed your undergraduate studies? (Where else did you apply besides Harvard?)

I have always had a strong interest in comparative law, so I wanted to experience a different common law legal culture. I was also keen to understand American society, so I thought that studying in the US would be a good way to learn about Americaâ&#x20AC;&#x2122;s people, history, and culture. I

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also applied to Columbia, New York University, UC Berkeley, Cambridge, and Oxford.

How has Harvard been so far?

Harvard has been really great and I’m enjoying every minute of it!

Student body. The students in Harvard Law School (“HLS”) give off a more mature vibe than those in the UK, mostly because law school students here are all postgrads, and many have prior work experience. Many LLMs in HLS even have extensive legal work experience, so I get to learn a lot from my peers at HLS. The HLS LLM cohort is also extremely international, with about 180 students from over 70 countries, so I really cherish the opportunity to have got to know so many people and good friends from around the world.

Teaching. HLS pioneered the socratic case method of teaching law in America, so this is still widely used in HLS and American law schools today. The socratic method involves lecturers calling on students during lectures to answer questions about the case law or statutory regimes. This is also known as “cold calling” (for some generally representative videos of cold calling in HLS, there are scenes in the 1973 movie ‘Paper Chase’ and the 2001 movie ‘Legally Blonde’. Thus, lectures in HLS are not one-way like the lectures are in Cambridge. Howev-

er, there are no Cambridge-style supervisions/tutorials (in which a group of 2-4 students spend an hour with an academic supervisor every two days or so to go through the course material) in HLS. As such, I view the mode of teaching in HLS as lecture-size supervisions, the major difference with Cambridge being quantitative rather than qualitative (since you get a lot less personal contact time with lecturers in HLS than what I got with my supervisors in Cambridge).

Course selection. HLS has a far wider range of courses to choose from than Cambridge. Unlike Cambridge which has courses that focus heavily on traditional legal doctrine, even the less popular electives (e.g. comparative law, banking law, EU environmental law etc) - HLS is a lot less averse to offering what English lawyers would consider as non-legal subjects, such as “Global Political Economy”, “Sex Equality”, and “Critical Race Theory”. HLS also has many workshops and clinics that hone practical legal skills - such as the popular “Negotiation Workshop”, “Trial Advocacy Workshop”, and “Mergers and Acquisitions Workshop” - something that most English law schools don’t offer. Another key difference between American and English LLMs is that the LLMs take the exact same courses and exams as the JD students. The good thing about this is that you get the exact same access to and education from all of the professors in the law school, so in a way you are getting an “authen89

tic” American legal education the way the JDs are. One small con is that some of the material can be quite basic, especially if you’ve already covered the same material in your undergrad law school. Thus, to gain as much as you can from the LLM, my advice is to step out of your comfort zone and take as many courses and workshops outside of what you’ve already learnt at undergrad!

Assessment. The exams are also very different. HLS works on a semester system, so courses are taught in each semester and assessed at the end of the semester.

Unlike Cambridge, which has a board of examiners and formal processes to set and mark exams, assessment in HLS - and indeed whether there is any assessment at all - is largely determined by the lecturer of your course.

Most doctrinal courses (like constitutional law and evidence) have exams, though they are open book and done on a computer. Some exams are in-class (spanning 2 to 3 hours), while others are “take home” (which could be 8 hours long, 24 hours long, or have no time restrictions and so are due at the end of the semester). Some courses require a paper instead, other courses take into account class participation, while seminars and reading groups often require response papers. My international trade law course, for instance, is assessed by a student’s performance in an in-class open-book exam and a simulated multilateral trade negotiation, with bonus points awarded for class participation.

Unlike most LLMs in the US and the UK, the HLS LLM has a compulsory written work requirement. You can write a short (at least 25 pages) or long (at least 50 pages) paper that is either in conjunction with a course or independently. I am writing an independent long paper on investment arbitration.

Extracurriculars. There is something for everyone in HLS, whether it is being an editor for an academic journal (even the Harvard Law Review - the foremost legal journal in the US - is edited by HLS students), pro bono work, or taking part in a student organisation. My personal favourite experience here has been mooting as part of the HLS Vis East team. This gave me the opportunity to learn not only from our four very experienced coaches (all of whom are practitioners with years of experience in arbitration and Vis) but also distinguished arbitrators who judge the Vis moots and pre-moots. I am also deeply honoured by the chance to represent Harvard at the international stage. So far, I have mooted for Harvard at

two Vis pre-moots in Cravath, Swaine & Moore LLP and Fordham University, and will be going to Hong Kong for the actual competition in late March.

Did you notice any vast differences in US law and UK law?

Methodologically speaking, there is little difference as both jurisdictions are based on the common law. However, American lawyers tend to be more receptive to what English lawyers may view as “extralegal” tools of analysis, so less traditional ways of thinking - such as economic analysis of law - are far more developed and well received in the US. Doctrinally, there are certainly several differences, especially in fields underlain by politics and culture (e.g. constitutional law). Civil procedure is also a very important and complicated field of law in the US due to its federal system.

Nevertheless, I think the key difference is cultural: the American legal realist movement was very influential, so American lawyers tend to be a lot more skeptical about judicial rhetoric masked as doctrine. This is most evident when comparing American and English constitutional law, because there tends to be a fair amount of fear-invoking slippery slope rhetoric in American constitutional legal argument, and this is not only recognised but also stressed by some of the constitutional law professors in HLS. In terms of how all this applies back to Singapore, I think there can be a tendency for common lawyers to paint the “common law” with a broad brush, as though all common law jurisdictions have the same legal culture and way of thinking about the law. Thus, I think that learning to see the common law through a different lens is helpful to my work in Singapore because it helps to broaden my perspective on the law, what it is, and what it can be (and perhaps even what it should not be).

What advice do you have for students who are considering pursuing a LLM in the US? My biggest tip is to start early. This includes researching the required application materials and deadlines early so that you don’t get mired in the complex application process, and thinking about your application early so that you can weave a coherent and compelling picture of yourself and do what you need to do (e.g. intern, moot, publish etc) to ensure that the narrative you’re painting is a convincing one. I myself only started thinking about my application five months ahead of the first applica90

tion deadline (HLS), which I think is already a little late.

The deadlines are usually in December, so the latest you should start thinking about your application is July so that you won’t have to worry about your application when the academic year starts!

Different schools have different application requirements, but generally most US LLMs will require a personal statement, a CV, at least one reference (many require two), and your law school transcript. There is no need to take the LSAT. HLS also asks for a legal essay and a few paragraphs about your academic interests and career goals. Columbia needs a statement of your rank in your law school cohort.

My last tip is to remember that, unlike English law schools, American law schools strive to look at each candidate as a whole, so grades are but just one factor among a slew of factors taken into consideration. This means that no one is “guaranteed” a spot by his or her sheer grades alone. It also means that everyone, even applicants with less than perfect grades, stands a chance! So make sure to carefully think through how you can paint yourself as someone who would add a lot of value to the law school - both presently and in the future.

Itâ&#x20AC;&#x2122;s time...

Be part of something exciting.

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Applications for our Summer Internship 2018 open October 1st 2017.

Visit our website for more information.

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INTERVIEW WITH MAGDALENE LU AND MARK LEE Going Global

by Charlotte Ng Jane Ting, London School of Economics and Political Science

As the final year of law school looms, some may have already secured a training contract back in Singapore, or in London. Many do not step out of their comfort zone to seek an unconventional path. Yet, given that the legal industry has grown to be increasingly competitive, law students should consider expanding their options â&#x20AC;&#x201C; securing a training contract in another jurisdiction, an internship in other parts of Europe, or choosing to specialise in a particular type of law by pursuing a LLM. In this feature, Lex Loci speaks to Magdalene Lu and Mark Lee to learn more about their motivations in exploring different options when commencing their respective legal careers. They have both provided interesting perspectives which may prove inspiring to those contemplating an international career .

Magdalene completed her LLB at University College London (UCL) and is a future trainee solicitor at Allen & Overy Hong Kong. She is currently pursuing her PCLL studies at City University of Hong Kong. Magdalene was the co-founder and Vice President of the Asia Careers Society (ACS) at UCL in her final year. ACS is the first career society at UCL dedicated to helping students discover graduate opportunities in Asia.

After having undertaken vacation schemes and/or internships at law firms in Singapore, London and Hong Kong, why/how did you decide that Hong Kong was the place to commence your career in law?

The transactions which the Hong Kong office works on are focused mainly on deals in the Greater China region.

As I believe there will continue to a need for lawyers to advise on China-related deals in the future, I decided to commence my career in HK in order to gain a better

knowledge of China-related transactions and the soft skills of working with Chinese clients.

Hong Kong is incredibly cosmopolitan and the lawyers who work at international firms in Hong Kong have studied and practiced law in different countries. I believe that working together with them will be an enriching experience.

On a more personal level, I like the idea of working abroad and trying something new. So after completing my degree in London, I decided to make the big move to Hong Kong.

Are there any stark differences between English law and Hong Kong law?

For the most part, there are no stark differences between English law and Hong Kong law. For instance, Hong Kong applies English contract law principles and civil litigation procedures.

However, Hong Kong conveyancing law is very different from English land law. One main difference is that almost all land in Hong Kong vests in the state so there is no privately owned freehold land in Hong Kong. There are sections of Hong Kong legislation which are peculiar to Hong Kong, such as law governing the rights and obligations of residents of multi-storey buildings.

Could you tell us more about the PCLL and your experience studying the PCLL thus far?

The PCLL is a very intensive course, as there are many contact hours and the workload is extremely heavy.

I have to prepare for weekly tutorials for all 8 modules each semester after a full day of classes.

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That said, as a lot of time is spent in my classroom with my group mates, I have forged valuable friendships with them. I am entertained daily by the bantering amongst my group mates in between classes. My group mates are a fun bunch and we organize gatherings such as karaoke, hiking and BBQ to relax. I also have fond memories of eating my takeaway lunches in the classroom with my group.

What could potential trainees expect during an internship at Allen & Overy Hong Kong?

Summer interns will assist their buddies, who are associates, in whatever client matters they are involved in.

The task may be research and a short advice on a specific legal issue or review of a contract to pick out clauses which need to be modified in order to protect the interests of the client.

Summer interns can also look forward to a strong buddy and mentoring programme during the one month internship as each intern will be paired with a buddy who is a trainee and a mentor who is an associate. The mentorship programme provides a good opportunity to find out more about the firm culture and obtain career-related advice from young lawyers who have recently gone through the process of searching for a training contract.

An internship with A&O is not all about work, as there are a couple of socials in the internship calendar, such as a dinner with partners followed by a karaoke session.

Is possessing proficiency in Cantonese a requirement to working in Hong Kong? Has living in Hong Kong enabled you to hone your Cantonese or Chinese skills?

Proficiency in Cantonese is not an official requirement set by law firms to work in their Hong Kong office, as all discussions between lawyers in an official setting and emails are in English.

However, Cantonese is important in a social context. It is definitely useful to be able to understand and speak Cantonese so that you can join in discussions about where to go for dinner or drinks after work, which will in turn help you to build friendships with the local Hong Kongers. Moreover, the waiters at cha chan tengs (HKstyle cafes) almost exclusively speak Cantonese so knowing how to speak Cantonese will enable you to try local food at traditional eateries in Hong Kong.

Living in Hong Kong has honed my Cantonese language skills as my classmates speak Cantonese to each other so I have many opportunities to converse with them in Cantonese and to grow my Cantonese vocabulary by listening to their conversations. Moreover, as I am living in an â&#x20AC;&#x153;old districtâ&#x20AC;? in Hong Kong, most shopkeepers and stall owners at the wet market only speak Cantonese.

Living in such an area has helped me to practise speaking Cantonese daily.

Do you feel that your achievements outside of academics made a difference to your application (or did 94

academics play a main role in your application)? Would you encourage law students to actively engage in non-academic activities?

I think law firms look for well-rounded candidates so academics and co-curricular activities are both very important.

I believe my achievements outside of my studies have made my application more interesting. I participated in many mooting competitions at university, one of which was judged by barristers of a prestigious chambers in London. Participating in mooting honed my ability to communicate my ideas persuasively and succinctly and this was a useful skill to have when attending case study interviews for vacation schemes.

I also attended a few insight schemes at City law firms in my first year, which allowed me to gain commercial awareness through participating in various case studies during the schemes.

I will encourage students to go to more social networking events held by City firms in London to build up confidence in social networking.

Is there any advice you would give to potential applicants who aspire to commence their legal career in Hong Kong?

I would advise potential applicants to improve their written and spoken Mandarin as proficiency in Mandarin is very crucial for students who wish to commence their legal career in HK. It is now common for law firms to hold Putonghua tests and written Mandarin tests during the vacation schemes, and this is one aspect firms look at when determining whether to extend a training contract offer to a candidate.

Mark completed his LLB and LLM at the London School of Economics. He was awarded Honourable Mention for Best Individual Oralist at Willem C. Vis International Commercial Arbitration Moot in 2015. Mark is due to commence an International Arbitration Internship at Freshfields Paris as part of his Relevant Legal Training before returning to complete his Training Contract at Allen & Gledhill LLP in Singapore.

You are due to commence an International Arbitration Internship at Freshfields Paris this summer. Why did you choose to commence on an arbitration internship

instead of returning to Singapore for Relevant Legal Training?

I grew fond of International Arbitration when I took part in the 2014/2015 Vis Moot. Thus, I wanted work overseas for an international arbitration practice for at least part of my career before moving back to Singapore eventually to pursue my passion for advocacy (I am well aware that my opportunities for advocacy would be limited as a solicitor in London).

Since SILE confirmed that my 6 month stint in Freshfields Paris could be counted as the Relevant Legal Training period, I felt that it was a good opportunity to work at a renowned international arbitration practice while allowing me to return to Singapore in time for the Bar exams and to start my Training Contract at Allen & Gledhill. I am told that the arbitration internship will be demanding but enriching, and I am really looking forward to it!

Tell us more about your motivations for doing a LLM. Most International Arbitration practitioners I met during the Vis Moot and at arbitration conferences have undertaken a LLM. This is probably because arbitration is more technical than one might think and it is barely covered in the LLB curriculum.

Given my interest in a career in international arbitration (and also because I had actually signed a Training Contract with a London firm and my LPC was due to start one year after my LLB), I thought it would be necessary to spend the gap year pursuing an LLM in order to better understand the technical concepts of international arbitration. Despite having attended the Vis Moot thrice (once as a participant and twice as a coach), it was only through the LLM that I gained a deeper and more thorough understanding of the international arbitration framework.

You received an Honourable Mention for Best Individual Oralist in the Willem C. Vis International Commercial Arbitration Moot in 2015. Tell us more about your experience at the Vis Moot.

The Vis Moot was undoubtedly the best experience I had at university. The training and practice sessions (both during the written and oral phase) were rigorous to say the least and the learning curve was very steep as we are expected to draft and plead like practicing lawyers, not students. Like most international moots, the Vis was extremely time intensive and I probably spent more time 95

drafting the memos and preparing for hearings than I spent on school work.

Having said that, my team was very driven and we really pushed each other to improve our written and oral advocacy skills. We were very privileged to have been trained by 3 incredibly talented coaches. I feel that the written advocacy skills I picked up would be particularly valuable as a trainee/associate. It certainly helped in the test I had to take when I applied to Freshfields Paris!

Apart from all the hard work, there were plenty of social events at the Vis. We travelled to various countries in Europe for "pre-moots" in preparation for the actual Moot in Vienna and forged many friendships. I still keep in touch with many friends from the Vis today and there are a few legendary stories that are probably too risquĂŠ to mention here.

Any tips for aspiring mooters out there?

I would really encourage aspiring mooters to start mooting as early as possible in school practice or novice moots. This will allow them to make mistakes without the pressures of competition. Thereafter, it is best tojoin a mooting competition or program that has coaches to fine tune their oral advocacy skills. The best way to improve is to have a coach dissect your narrative and provide feedback after every hearing.

For oral advocacy tips, I always tell mooters to watch conferences on YouTube that explain the basic rules of advocacy. It is best to follow these basic rules for a start.

After mastering the basic rules of oral advocacy, each mooter should develop his/her own individual style. Do not try to mimic someone else's style because it often comes across as fake and rehearsed.

Do not forget that judges are human beings too and there is no need to fear them. Questions are the window to the judges' minds. Nothing is worse than passive/ quiet bench. Always listen carefully and attentively and tailor your answers to the point.

Finally, master your material (legal and factual). Prepare, prepare, prepare!

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