"The Geeks Shall Inherit the Earth": Two-way Influences amongst Fintech, Finance and Law

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"The Geeks Shall Inherit the Earth": Two-way Influences amongst Fintech, Finance and Law

Chew Jia Yi Joan

INTRODUCTION

“The geeks shall inherit the earth” is a phrase articulated by a Fintech company in Silicon Valley.¹ While the “geeks” behind Fintech may not yet have taken over Singapore, Singapore was recently named as one of the world’s top 2 Fintech hubs.² Clearly, Fintech will continue to influence local society, in particular its financial industry. This article aims to evaluate the two-way influences amongst Fintech, the financial industry and legal regulation mechanisms, as well as consider plausible future developments to their relationship.

A. Definition of Fintech

Fintech represents the innovative convergence of finance and technology. It can be defined at both the service and industry levels. In terms of a service, it involves the provision of financial services using new technologies, such as mobile phones and the Internet. In terms of industry, it refers to a non-financial business providing services such as payment without collaborating with a company specialising in financial services.³ Some well-known examples of these are Apple Pay and Alibaba’s AliPay.⁴

B. General Social Impacts

One of the areas in which Fintech is most relevant to the average Singaporean’s life is perhaps digital payments. Across the world, mobile payments alone were expected to grow by 60.8% in 2015, largely due to regulators’ willingness to allow new Fintech companies to operate without a banking license.⁵ Another important factor for this was new technology allowing for the implementation of novel solutions at far less than what it would have previously cost.⁶ In addition, the continued recovery of mature economies was also a contributing factor.⁷ Given the predicted stabilisation of global markets rather than strong growth,⁸ it is plausible that the rapid growth of Fintech services might slow down, but it is unlikely to stop completely.

On a larger scale, Fintech might be able to help hedge the financial consequences of an aging society, such as through peer-to-peer (P2P) lending services.⁹ Singapore is unquestionably a rapidly ageing society, with over 25% of the population reaching old age by 2030.¹⁰ The exact impact of Fintech on an aging society remains to be seen, but there will probably be some form of impact in future as both these elements are here to stay.¹¹

FINTECH’S INFLUENCE ON THE FINANCIAL INDUSTRY AND ITS REGULATORS

Apart from impacts on society in general, it is likely that Fintech will have a strong influence on the financial services sector. As the legal and financial industries are closely connected, the impact of Fintech on the legal sector cannot be ignored as well. An analysis of such an impact is important given the significance of the financial and legal industries in Singapore—these industries are critical for Singapore to maintain its status as a regional economic and legal hub.¹² As the influence of Fintech in the local context might not be completely visible at present, relevant examples from other jurisdictions will also be mentioned.

A. Fintech Services Offered by Banks

Some Fintech services offered by banks can be said to be at odds with some of the core principles traditionally governing banking operations. Firstly, banks have traditionally been proponents of calculated risks, such as their facing the risk of mortgagees being unable to pay back their mortgages in an economic downturn. This is because they have the chance to profit from such risks if their calculations are accurate. However, in the market of certain Fintech services such as digital payments, there is a focus on minimising risk because profitability does not stem from such risks.¹³ Secondly, building good relationships with customers has always been important in banking, but Fintech services such as digital payments do not place as much emphasis on the quality of relationships with customers. ¹⁴ As such, it is plausible that there may be an eventual separation of the banking and Fintech industries.¹⁵

However, there are some areas in which the fundamental principles governing Fintech and banking operations have not been in direct conflict. Rather, in these areas, Fintech has merely resulted in a shift in the type of business banks undertake. Such a shift would be beneficial for financial regulators. For instance, in the wake of the 2008 financial crisis, banks have acknowledged the importance of transactions, apart from their traditional risk-taking, as a means of generating profit. The ability of digital payments to facilitate such transactions would complement, rather than hinder, the banks’ developing an ideal transactional framework.¹⁶ Indeed, Internet banking has resulted in at least 50% of over-the-counter payments in some Chinese banks.¹⁷ Given that it might be harder for banks to check the authenticity of a customer’s over the Internet as compared to looking at the physical person, legal regulations focusing on Know Your Customer (KYC) and Anti-Money Laundering (AML)¹⁸ regulations will only continue to grow in importance. Indeed, the Monetary Authority of Singapore (MAS) has recently embarked on a project to create a national KYC utility, and has acknowledged that there might even be a need for more advanced types of KYC guidelines.¹⁹

B. Fintech services offered by companies other than banks

As for Fintech services belonging to non-financial companies, there has been a rise of services that threaten the very existence of the formal banking sector. These companies, with their services such as Bitcoin, involve peer-to-peer networks managed by the Internet community.²⁰ This compromises the need for financial institutions in this area. This development also potentially makes it harder for legal regulations, as there are arguably more parties to regulate than in traditional banking. However, at the same time, this obstacle is not insurmountable as some Fintech services leave a permanent financial record of each transaction through usage of blockchains.²¹ This would be of some comfort to regulators as it would aid in their continuing to play their roles effectively.

Furthermore, Fintech services might also benefit regulators of traditional financial institutions in terms of reducing their workload. The new Fintech companies will be able to help traditional financial institutions achieve some of the outcomes that legal regulators have been aiming to achieve with the financial sector, such as developing Singapore into an international financial centre.²² To do so, legal regulators have to ensure financial institutions cut costs and deliver quality financial services. Fintech companies can help regulators achieve such outcomes through competition. For instance, American Fintech start-up Lending Club’s expenses as a share of its loan balance is about 2%, less than half the equivalent for conventional moneylending services.²³ This results in better deals for customers, who are increasingly shifting away from traditional banking platforms. Hence, such competition will force financial institutions to work towards the goals that regulators have been setting for them all along,²⁴ helping regulators in this respect.

RESPONSE OF THE FINANCIAL INDUSTRY AND ITS REGULATORS TO FINTECH

Although the shift towards Fintech has not been a total bed of roses for financial institutions and their regulators, they have tried to keep abreast of developments in this area and ensure their continued relevance.

For instance, banks might actively take steps to hinder the development of Fintech. This is because banks have no clear financial incentive to support Fintech start-ups. On the contrary, some aforementioned aspects of their operations are arguably threatened by Fintech start-ups. Such steps are apparent in countries such as the United Kingdom, where HSBC and Barclays have closed the accounts of some digital currency operators and refused to give them merchant identification for receiving direct debit payments.²⁵

Such pushback from financial institutions leads to a greater role for legal regulation in the financial industry as a whole. For instance, during his term in office, former United Kingdom Chancellor of the Exchequer George Osborne promised legislation to help Fintech firms obtain capital. This included a proposal to force banks who refuse to grant them loans to refer them to alternative sources of funds, such as crowdfunding.²⁶ It is plausible that given the context of both Singapore and the United Kingdom aiming to become Fintech hubs,²⁷ Singapore might also introduce similar regulations to actively aid Fintech start-ups resolve cash flow issues.

An area in which Singaporean regulators are already helping Fintech companies is their navigation of the complex legal landscape. At present, apart from the aforementioned KYC and AML regulations, there are many other regulations that both banks and Fintech start-ups have to deal with in launching their services. Despite such regulations aiming to make Fintech safe for society to utilise, some of them may not have fully caught up with the novel business models that Fintech services employ, which would hinder true innovation in the field.²⁸ In response to this problem, the MAS has recently allowed banks and Fintech start-ups to apply to join a ‘regulatory sandbox’, in which certain legal and regulatory rules will be relaxed to allow for the testing of new Fintech services.²⁹ Companies will then be able to focus on developing their services while only focusing on compliance with the more important regulations which will not be relaxed during the ‘sandbox’ phase, such as some AML rules.³⁰ Should these experiments prove successful, the Fintech services would be applied on a broader scale, upon which they would then comply with all relevant legal regulations. Thus, this scheme will aid both banks and Fintech start-ups to better understand the relevant regulations and comply with them, without stifling their experimentation.

Greater legal regulation may also lead to increased popularity of Fintech services amongst the general population Increased government regulation of the Fintech sector may help to overcome ordinary consumers’ security-related concerns regarding Fintech. For instance, online payment systems, particularly those involving P2P transfers, may be more vulnerable to personal data theft than traditional payment methods.³¹ It also does not help that there has been a steady rise in scams involving online credit transfers, such as when sellers do not deliver goods after the buyer has paid for them online.³² This comes despite companies such as PayPal helping buyers obtain refunds from errant sellers.³³ This indicates a plausible role for greater legal regulation to prevent exploitation of innocent users of Fintech services. With greater regulatory control over the sector, potential Fintech users may have these fears allayed. This would thus aid the growth of the local Fintech customer base.

CONCLUSION

In conclusion, it has been shown that there is a strong influence by Fintech on existing financial institutions and their regulators. Although Fintech has resulted in banks facing more difficulty in certain aspects of their operations, it has arguably benefitted financial regulators in some areas, such as through increasing their relevance. Vice versa, banks and regulators can also hinder or aid the growth of the Fintech sector, though it seems that regulators are playing a greater role in Fintech’s expansion. Indeed, Commentators have suggested that regulators can do even more to aid the shift towards Fintech, such as through facilitating the establishment of courses focusing on digital financial services for students trained in business and Information Technology (IT).³⁴ Although all governments face restricted ability to undertake regulatory commitments,³⁵ this limitation might be particularly pertinent in Singapore where resources are generally scarce. Thus, it would be ideal if regulators could find low-resource ways to better regulate the “geeks” behind the Fintech sector, enabling its growth while increasing protection of users.

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[1] Ravi Menon, “A Smart Financial Centre” (Keynote Address delivered at the Global Technology Law Conference, 29 June 2015), online: <www.mas.gov.sg/news-and-publications/speeches-and-monetary-policy-statements/speeches/2015/a-smart-financial-centre.aspx> [Menon, “A Smart Financial Centre”].

[2] Jun Jie Woo, “To be a FinTech Hub, Singapore Needs RegTech”, Today (27 October 2016), online: <todayonline.com>.  

[3] Yonghee Kim, “The Adoption of Mobile Payment Services for “Fintech”” (2016) 11:2 IJAER 1058.

[4] Ibid.

[5] Ross P Buckley & Ignacio Mas, “The Coming of Age of Digital Payments as a Field of Expertise” (2016) 1 U Ill J L Tech & Pol’y 71.

[6]  Ibid at 78.

[7] Ibid at 71.

[8] Interview of Franziska Ohnsorge, Chief Economist, Development Propsects Group, World Bank by Grzegorz Siemionczyk (21 January 2016) at online: <www.worldbank.org/en/news/opinion/2016/01/21/
it-is-not-then-that-the-global-economy-has-returned-to-normal> .

[9] Christopher Chan, “Hedging the Aging Society: Challenges to the Insurance Market and Law in Singapore” (2016) [unpublished, archived at Social Science Research Network Electronic Library] at 13-14.

[10] Ibid at 1.

[11] Chan, supra note 9 at 14.

[12] Sarah Kogan, “Singapore’s Legal Sector: The Fight for Market Share”, The Business Times [of Singapore] (15 February 2015), online: <businesstimes.com.sg> .

[13] Buckley & Mas, supra note 5 at 73.

[14] Ibid at 75.

[15] Ibid at 87.

[16] Ibid at 77.

[17] Weihuan Zhou, Douglas W Arner & Ross P Buckley, “Regulation of Digital Financial Services in China: Last Mover Advantage?” (2015-2016) 8: Tsinghua China L Rev 25 at 35.

[18] Alan Gelb, “Balancing Financial Integrity with Financial Inclusion: the Risk-based Approach to Know Your Customer” (2016) Center for Global Development Policy Paper 74.

[19] Ravi Menon, “Singapore’s Fintech Journey—Where We are, What is Next” (Address at Singapore FinTech Festival—FinTech Conference, 16 November 2016), online: <www.mas.gov.sg/News-and-Publications/Speeches-and-Monetary-Policy-Statements/Speeches/2016/Singapore-FinTech-Journey.aspx>.

[20] Buckley & Mas, supra note 5 at 79. 

[21] Michael Mainelli & Alistair Milne, “The Impact and Potential of Blockchain on the Securities Transaction Lifecycle” (2016) SWIFT Institute Working Paper No 2015-007 at 3.

[22] Monetary Authority of Singapore, “Overview” <www.mas.gov.sg/About-MAS/Overview.aspx> (accessed 28 November 2016).

[23] “The Fintech Revolution”, The Economist (9 May 2015), online: <economist.com> .

[24] Menon, “A Smart Financial Centre”, supra note 1. 

[25] Martin Arnold & Sam Fleming, “Regulation: Banks Count the Risk and Rewards”, Financial Times (November 14, 2014), online: <ft.com> .

[26] Arnold & Fleming, supra note 25.

[27] Ibid.

[28] “Piecemeal Regulation is Hindering US Fintechs”, Business Insider (17 October 2016), online: <businessinsider.com> .

[29] Monetary Authority of Singapore, Media Release, “MAS Issues “Regulatory Sandbox” Guidelines for FinTech Experiments” (16 November 2016), online: MAS Media Releases <www.mas.gov.sg/News-and-Publications/Media-Releases>.

[30] Weilun Soon, “MAS Issues Guidelines for Fintech Regulatory Sandbox”, The Business Times [of Singapore] (16 November 2016), online: <businesstimes.com.sg> .

[31] Jennifer Windh, “Peer-to-peer Payments: Surveying a Rapidly Changing Landscape” (2011) Federal Reserve Bank of Atlanta at 17.

[32] Huiwen Ng, “$1m Lost to Online Purchase Scams”, The Straits Times (28 November 2016), online: <straitstimes.com> .

[33] Windh, supra note 31 at 18. 

[34] Buckley & Mas, supra note 5 at 86. 

[35] Joseph E Stiglitz, “The Role of the State in Financial Markets” (Paper delivered at the World Bank Annual Conference on Development Economics, 1993), (1994) Proceedings of the World Bank Annual Conference on Development Economics 19 at 33.

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The Case For Removal Of HIV-Related Immigration Restrictions In Singapore

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The Case for Removal of HIV-Related Immigration Restrictions in Singapore

Foo Ee Yeong Daniel

INTRODUCTION

In 1998, persons suffering from Acquired Immune Deficiency Syndrome (AIDS) or infected with Human Immunodeficiency Virus (HIV) were explicitly listed as “prohibited immigrant[s]” under s 8(3)(ba) of Singapore’s Immigration Act¹ to protect Singapore’s public health in the wake of a global HIV epidemic.² This manifested in a ban on HIV-positive foreigners from entering the country. While the ban on foreigners on short-term visit passes was quietly lifted in 2015, persons with HIV or AIDS are still prohibited from long-term visits to Singapore – the official reason being that “the public health risk posed by long-stayers is not insignificant”.³ This article aims to study the reasons for s 8(3)(ba) and the existing HIV-related immigration restrictions, and submits that they should be repealed and removed respectively.

THE CASE FOR REMOVAL OF HIV-RELATED IMMIGRATION RESTRICTIONS

A. The restrictions are an outdated model intended for an unpredictable epidemic

It is submitted that the restrictions on HIV-positive immigrants no longer serve their original purpose as a response to an unpredictable epidemic on a global scale. The context in which HIV-positive foreigners were listed as “prohibited immigrants” in 1998 concerned a dramatic increase in the number of HIV infected residents: Singapore had almost 200 reported cases, and more alarmingly, 42 new cases of HIV and AIDS were reported in 1991, vis-à-vis the 61 cases between 1985 and 1990. Against this backdrop of domestic increase in HIV infections was our large number of HIV-positive foreigners: 2,813 foreigners had been tested to be HIV-positive while in Singapore, 80% of whom were work permit holders and applicants.⁴ The “policy on the repatriation and permanent blacklisting of HIV-positive foreigners”⁵ was Singapore’s consequent response to that global crisis, as we were perceived to be “particularly vulnerable… [given] people coming into Singapore in far greater numbers, and Singaporeans [travelling] abroad even more frequently”.⁶

It is submitted that this policy is outmoded. Today, the rate of new HIV cases has generally been constant at about 450 new reported cases each year since 2008.⁷ The rate of HIV infection is generally maintained unlike in the past; treatment and control measures have made the disease much more predictable, and the heavy response we opted for decades ago is arguably inappropriate given the relatively moderate scale at which HIV spreads today.

Furthermore, immigration restrictions have become a disproportionate response to the severity of HIV, which today has reduced dramatically. The policy against HIV-positive foreigners was recommended when HIV was “new, fatal and no effective treatment was available”;⁸ HIV was considered a “death sentence”.⁹ This is no longer the case today as “more than 5,000 Singapore residents [live] with HIV” and there is “effective treatment for the disease”. In fact, HIV-positive persons on antiretroviral therapy may be “successfully virally suppressed” and “not infectious to other people”. In this vein, it is submitted that any prohibition on HIV-positive immigrants despite their non-infectiousness is disproportionate to the alleged “public health risk” they pose.

B. The restrictions are ineffective in reducing the spread of HIV

Increasingly, it is clear that Singapore’s policy against HIV-positive immigrants does not reduce the type of public health risk it purports to.¹¹ Since 97% of HIV contraction in Singapore is through sexual intercourse,¹² the main persons at risk are sexual partners of infected persons, who only transmit HIV via certain kinds of sexual behaviour; no health risk is posed to the general public through casual contact. Persons infected with HIV are thus significantly different from persons infected by other contagious diseases that make their very “presence in Singapore dangerous to the community”,¹³ and should not warrant the same immigration restrictions they do. Most importantly, punitive measures such as immigration restrictions have been proven to be relatively ineffective in preventing transmission, and in fact “may limit the uptake of HIV voluntary testing and hinder adherence to HIV treatment”.¹⁴ In this vein, it is submitted that an HIV-positive person should not be banned from long-term stay in Singapore while a person suffering from a different type of sexually transmitted disease is not, since these are all ‘controlled’ diseases that are not effectively reducible by immigration restrictions.

Furthermore, concerns that foreigners (aware or unaware of their HIV status) may (intentionally or unintentionally) spread the disease would generally be well controlled under Singapore’s strict domestic laws against HIV infection.¹⁵ In particular, an immigrant who knows he has HIV,¹⁶ or for whatever reason does not know he has HIV but has reason to believe that he has or has been exposed to a significant risk of infection, must disclose this risk to his sexual partner before engaging in sexual activity, or be liable to criminal charges as per s 23(2) of the Infectious Diseases Act.¹⁷

In any case, the risk of HIV spreading is greatly ameliorated by the availability of anonymous HIV testing, increasing public education about HIV in schools and workplaces,¹⁸ guidelines to manage HIV at the workplace, and advancements in public health practices¹⁹ – all of which would be readily available to both the HIV-negative populace and HIV-positive immigrants to mutually prevent infection.

In this vein, it is further submitted that the distinction between the public health risk posed by short-term visitors and long-term visitors is arbitrary; the duration of one’s stay is much less a variable of a person’s infectiousness, compared to more important factors such as one’s knowledge, disclosure and treatment of the disease – all of which are generally well regulated in Singapore.

While it is acknowledged that HIV infection rates are still higher than before Singapore implemented its current HIV-related immigration restrictions in 1998, it is submitted that lifting our immigration restrictions would have negligible effect on the current domestic spread of HIV. Firstly, overall HIV infection rates among adults are stabilising worldwide;²⁰ Singapore’s HIV infection rates are not out of the ordinary, and removing HIV-related immigration restrictions would not reasonably lead to an exceptionally large number of HIV-positive foreigners entering Singapore. Secondly, the spread of HIV carried by immigrants may be circumscribed, for instance, by continuing to require mandatory testing for long-term visitors²¹ and/or subjecting them to the same laws relating to HIV infection as those applying to all Singaporeans.

C. Repealing s 8(3)(ba) would reduce stigma and better satisfy public conscience

It is submitted that removing HIV-related immigration restrictions would better achieve Parliament’s underlying objective to promote inclusiveness and reduce stigma today. When Parliament crafted HIV-related laws, they were concerned with treating patients “humanely and with great compassion” as they and their loved ones undergo “great suffering and social stigma”.²² However, this had to be balanced with “protecting innocent people” from contracting HIV,²³ which led to prohibitions on HIV-foreigners from entering the country while HIV-positive Singaporeans remained to seek treatment at home. Noticeably, this by implication seems to unfairly characterise HIV-positive immigrants as a group distinct from “innocent people” in society, even though HIV-positive persons are in many cases victims of circumstance. Given our many health and social support systems, as well as the treatability of HIV that may even render an infected patient ‘risk-free’, the protection of both HIV-positive and negative persons today is not a zero-sum game. It is thus submitted that Parliament’s previous concern about balancing the interests of HIV-positive and negative persons today should be adjusted such that HIV-related immigration restrictions are removed.

Further, Parliament should repeal s 8(3)(ba) as a matter of public conscience. Since the late 20th Century, HIV-positive persons have ranged from married wives infected by their husbands, to children infected perinatally, to blood donees via transfusion, to health care workers via clinical procedures.²⁴ 97% of HIV contraction in Singapore is through sexual intercourse, and this is not limited to individuals engaging in high-risk sexual behaviour – often victims have sexual partners’ whose HIV status was either undisclosed or unknown. It therefore seems unjust that the HIV-positive foreigner is labelled a “prohibited immigrant” alongside charges on the public,²⁶ outlaws,²⁷ prostitutes,²⁸ procurers,²⁹ vagrants,³⁰ and persons seeking to overthrow the government by violence³¹ as our laws should seek treat them with compassion accordingly.

To this end, it is submitted that HIV-positive persons should be allowed to enter Singapore as ‘lawful’ immigrants and stay long-term should they choose to, without being ‘exceptionalised’ and ‘othered’ as a group whose mere presence is a danger to public health – a widespread perception that is taught as untrue, and would be better proven with the removal of s 8(3)(ba). Such a legal reform would enhance the inclusiveness of our whole community, which includes both HIV-positive and negative persons.

CONCLUSION

Removing HIV-related immigration restrictions would not be an unprecedented policy, and Singapore has the benefit of gleaning from the experience of many other countries that have done this. From 2000 to mid-2013, there was a more than 50% reduction in the number of territories with HIV-related travel restrictions – from 96 to 43.³² In particular, the United States had a similar experience to Singapore’s: first applying a blanket ban on HIV-positive foreigners given its large influx of immigrants and the explosion of the AIDS epidemic in the 1980s, before removing the restrictions on short-term travellers in 2006, and eventually removing the ban entirely in 2010 – a process catalysed by vocal opposition from the international community.³³ Changing a law typically takes time and effort, and the process requires the community to voice its concerns and what it thinks is right. This article hopes to aid in this respect, as part of former and ongoing efforts by other members of the community to do the same.

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[1] Immigration Act (Cap 133, 2008 Rev Ed),

[2] Parliamentary Debates Singapore: Official Report, vol 69, col 939 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)),

[3] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[4] Parliamentary Debates Singapore: Official Report, vol 70, col 24 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[5] Supra note 3.

[6] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[7] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[8] Supra note 3.

[9] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[10] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[11] Parliamentary Debates Singapore: Official Report, vol 69, col 937 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)).

[12] Supra note 7.

[13] s 8(3)(b), Immigration Act (Cap 133, 2008 Rev Ed).

[14] UNAIDS Report 2013, page 92.

[15] ss 22 to 25A of the Infectious Diseases Act (Cap 137, 2003 Rev Ed).

[16] Ibid at s 23(1).

[17] Ibid at ss 23(2).

[18] Parliamentary Debates Singapore: Official Report, vol 86, col 1969 (11 January 2010) (Mr Khaw Boon Wan).

[19] This is similar to the considerations made by the United States in deciding that HIV infection is no longer a “significant public health risk”, as per the Department of Health and Human Services, “Medical Examination of Aliens – Removal of Human Immunodeficiency Virus (HIV) Infection From Definition of Communicable Disease of Public Health Significance”, online: <https://www.gpo.gov/fdsys/pkg/FR-2009-11-02/html/E9-26337.htm>.

[20] AVERT, “Global HIV and AIDS Statistics”, online: <http://www.avert.org/global-hiv-and-aids-statistics>.

[21] Immigration & Checkpoints Authority, “Medical Examination for Successful Applicants of Employment Pass, Long-Term Immigration Pass and Permanent Residence”, online: <https://www.ica.gov.sg/news_details.aspx?nid=4497>.

[22] Parliamentary Debates Singapore: Official Report, vol 70, col 29 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[23] Parliamentary Debates Singapore: Official Report, vol 70, col 34 (26 February 1999) (Dr Lily Neo (Kreta Ayer-Tanglin)).

[24] Parliamentary Debates Singapore: Official Report, vol 70, col 25 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[25] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[26]Immigration Act (Cap 133, 2008 Rev Ed), s 8(3)(a).

[27]Ibid at s 8(3)(d).

[28] Ibid at s 8(3)(e).

[29] Ibid at s 8(3)(f).

[30] Ibid at s 8(3)(g).

[31] Ibid at s 8(3)(i).

[32] Global Report UNAIDS report on the global AIDS epidemic 2013, page 92, online: <http://www.unaids.org/sites/default/files/media_asset/UNAIDS_Global_Report_2013_en_1.pdf>.

[33] National Institutes of Health, United States National Library of Medicine, “The Impact of Removing the Immigration Ban on HIV-Infected Persons”, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3263303/>.

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The Nature and Scope of the Right to Vote in Singapore

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The Nature and Scope of the Right to Vote in Singapore

Feng Zheyi

Democracy (from the Greek dêmos “people” and krátos “rule”) is premised on popular vote. Government decisions are made by the people themselves, their elected representatives, their nominees, or some combination of the above. The right of the people to vote, either in referendums or in elections, are hence fundamental and central to any democracy – democracy without voting is simply a contradiction in terms.¹

One might expect this centrally important right to be enshrined in constitutional documents, and not be subject to much confusion. However, in Singapore, the precise nature and the scope of citizens’ right to vote remains murky, a rather unsatisfactory state of affairs. It is suggested that the inclusion (by constitutional amendment) of an explicit constitutional right to vote would reduce much of the surrounding uncertainty.

THE STATUS QUO

The right to vote is not explicitly recognised in the Constitution, but has been explicitly declared by Minister for Law Mr K Shanmugam as an implied constitutional right.² More recently, the Court of Appeal in Vellama d/o Marie Muthu v Attorney-General³ opined (in dicta) that voters in a constituency are “entitled to have a Member representing and speaking for them in Parliament”,⁴ somewhat mirroring the aforementioned declarations by the Minister in Parliament.

The right to vote is further explicitly detailed in the Parliamentary Elections Act [PEA],⁵ which provides that “any person who [is qualified to vote] shall be entitled to have his name entered or retained in a register of electors in that year".⁶ The PEA further states the conditions providing for the qualification and disqualification of voters, and provides the electoral procedure. It seems clear that each citizen who qualifies under the PEA has a private statutory right to vote.

However, it is uncertain if a constitutional right to vote exists, and even if it does, the precise nature and scope of such a right remain unclear. While the Minister for Law and the Attorney-General may explicitly recognise a constitutional right to vote,⁷ neither office is vested with the constitutional power to make definitive pronouncements on constitutional interpretation – only the Courts may do so.⁸

While there seems to be judicial recognition in Vellama⁹ of a public constitutional right to vote,¹⁰ the pronouncement was ultimately obiter and not ratio (albeit rather strong obiter). Furthermore, the Court in Vellama did not clearly rule if citizens also have a private (i.e. personal) constitutional right to vote, one that is capable of being enforced by individual citizens who claim that their right to vote has been infringed upon by executive or legislative actions. The Court in Vellama merely suggested the existence of such a private constitutional right,¹¹ though not making a definitive pronouncement on its existence or its scope.

Whether the private right to vote is constitutional or statutory is of monumental importance. The public right to vote is arguably satisfied as long as elections are held in accordance with the PEA. If a citizen’s private right to vote is merely statutory, it can arguably be circumvented by the legislature amending the qualification (or disqualification) provisions in the PEA¹² (assuming that these amendments are not unconstitutional in some other way). However, should such a private right to vote be constitutional, a citizen would likely be able to successfully quash a legislative amendment that removes his or her ability to vote.

A citizen’s private right to vote is already significantly curtailed by the PEA. Would-be voters can be disqualified if they are accused of or serving a sentence punishable with a 12 months’ imprisonment or more,¹³ or if they had not voted in a previous election and had not registered to be restored to the register of electors,¹⁴ for which they have to provide a ‘good and sufficient reason’ or pay a sum of money.

Under the current status quo, it remains unclear if the right to vote is constitutionally protected, and if so, what the ‘irreducible core’ of the right to vote – that which cannot be modified or infringed upon by legislative or executive action – is. In other words, when is legislative or executive action impacting a citizen’s right to vote unconstitutional?

AN “IRREDUCIBLE CORE” OF THE RIGHT TO VOTE?

The procedural aspects of citizens’ rights to vote are detailed in the PEA, all of which are merely statutory in nature, and can be legislatively amended, unless any of these provisions are within the ‘irreducible core’ of the right to vote.¹⁵

Indeed, the PEA provides many of the conditions of the electoral process, including detailing the qualifying criteria for voters,¹⁶ providing that each voters has exactly one vote,¹⁷ and providing that the elections be held by secret ballot.¹⁸ However, as the scope of the constitutional right is still unclear, drastic changes to the PEA which significantly curtail citizens’ rights to vote (such as by increasing the voting age from 21 to 40), change the impact of voting (such as by giving some classes of citizens a larger entitlement of ballot papers), or affect each citizen’s tendencies to choose (by removing secret votes) are all prima facie constitutional. While these hypothetical amendments are politically undesirable (and Parliament can be said to be politically constrained), they can still arguably be legitimately made without any constitutional amendments. If this is truly the case, then it is arguable that the right to vote does not enjoy the “highest possible legal protection”¹⁹ in the land typically afforded to a constitutional right, unlike what the Minister for Law alluded to in his speech.²⁰

What then, is within the ‘irreducible core’ of the right to vote? There is scant guidance from judicial or Parliamentary pronouncements, except from the rather narrow dicta in Vellama which states that the Prime Minister “cannot… [be] completely free to do as he pleases, even to the extent of delaying indefinitely the calling of a by-election”,²¹ although he maintains a “substantial measure of discretion”.²² This “substantial measure of discretion” may also be said to apply to the legislature seeking to amend the PEA, since it is typically afforded a “strong presumption of constitutional validity”.²³

At the moment, it seems that the ‘irreducible core’ of the right to vote arguably only comprises “elections being held within a reasonable period”, and, barring exceptional circumstances, it is unlikely that a constitutional challenge of legislative or executive acts which relies on the constitutional right to vote will succeed.

THE VALUE OF AN EXPLICIT CONSTITUTIONAL RIGHT TO VOTE

Much of the uncertainty regarding the right to vote can be remedied by inserting an express Article into the Constitution to lay out and protect the right to vote. In this regard, I disagree with the Minister for Law’s comments²⁴ that the express recognition of this right is unnecessary as it is already well recognised as an implied right – the precise nature and scope of this right is far from clear, and should be recognised explicitly, especially given its fundamental and central nature in a democratic society. The explicit recognition of this “Super-Right”²⁵ would also “affirm its primary importance”²⁶ and provide it with the constitutional status and protection it deserves.

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[1] Nominated Member of Parliament Prof. Thio Li-ann made a similar point in Parliament when she said: “Voting rights are the hallmark of democracy; it is the Political Right of rights, a Super-Right necessary for democracy to function authentically.” Parlimentary Debates Singapore: Official Report, vol 85 at col 3119 (12 February 2009) (Prof. Thio Li-ann).

[2] Parliamentary Debates Singapore: Official Report, vol 85 at col 3157 (13 February 2009) (Mr K Shanmugam).

[3] Vellama d/o Marie Muthu v Attorney-General, [2013] 4 SLR 1 [Vellama].

[4] Ibid at [79].

[5] Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing).

[6] Ibid at s 5(1).

[7] In his speech, the Minister for Law noted that he had “consulted the Attorney-General who agrees with [him] on this.” Supra note 2.

[8] Constitution of the Republic of Singapore (1999 Rev Ed), art 93.

[9] Supra note 3 at [27].

[10] A public right is one which is “shared in common with other citizens” (Vellama at [33]), and would arguably only require that elections be held (i.e. an individual cannot assert that his public right to vote is violated if an election is held, even if he is personally denied his right to vote – he would have to rely on a private or personal right).

[11] Supra note 3 at [27], [37].

[12] Supra note 5 at ss 5, 6, 7.

[13] Ibid at s 6(1A).

[14] Ibid at s 43(3).

[15] If one of the provisions within the PEA is also part of the constitutional right to vote, then a legislative amendment that purports to remove or change that provision may be unconstitutional.

[16] Supra note 5 at s 5.

[17] Ibid at s 42(1).

[18] Ibid at s 42(3).

[19] Supra note 2 at col 3158.

[20] Ibid.

[21] Supra note 3 at [78].

[22] Ibid at [87].

[23] Public Prosecutor v Taw Cheng Kong, [1998] 2 SLR (R) 489 at [60].

[24] Supra note 2.

[25] In Prof. Thio Li-ann’s words, supra note 1.

[26] Ibid.

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Observations on the Protection of Chinese Consumer Rights in our Age of Misinformation

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Observations on the Protection of Chinese Consumer Rights in our Age of Misinformation

Angeline Ang

I. INTRODUCTION

On April 12, 2016, 21-year-old Chinese student Wei Zexi died after a web search led him to undergo experimental treatment for cancer at a military hospital. Wei’s online account of his abysmal experience at the clinic went viral.¹ The resulting media furore was largely directed at Baidu, the search engine Wei used. The majority of social media users vilified Baidu for being indirectly responsible for Wei’s death, as it had allowed the highest bidder to place advertisements for unsafe medical procedures on its site. In response, the government was quick to limit Baidu’s advertising capabilities, with the result that price is no longer the sole determinant in ranking search results (among other requirements).² This article will evaluate the extent to which existing legal measures safeguard the rights of Chinese consumers. It will also propose solutions to protect Chinese citizens – namely, education and a relaxation of censorship laws.

II. HOW EFFECTIVELY DO CURRENT MEASURES SAFEGUARD CHINESE CONSUMER RIGHTS?

A. China's Medical Advertising Laws

Article 14 of the Advertisement Law of the People’s Republic of China [Advertisement Law] states that medical advertisements cannot include information about the medicine’s effectiveness, any unscientific assertions, or names or images of medical institutions, doctors or patients.³ Those who violate Article 14 may have to pay a fine or remove their advertisements.⁴ Article 34 of Advertisement Law states that advertisements for medicines and medical apparatuses shall be examined by relevant administrative departments before they are published and are prohibited from being published without examination.⁵ Those who publish advertisements without obtaining approval shall have to cease publication and pay a fine.⁶

However, given China’s suboptimal regulatory environment⁷ and the overwhelming number of advertisements published daily, it is clear that this provision will be of limited efficacy unless more government officials are hired to assess the suitability of advertisements. A system of checks and balances also needs to be implemented to ensure that the officials do not take bribes from advertisers.

B. China’s Consumer Protection Laws

Chinese consumers who have been harmed by deceptive advertisements may choose to sue the advertiser. Under Article 55 of the Law of Civil Procedure of the People’s Republic of China, if there are many plaintiffs who seek to file a claim against a defendant, the plaintiffs may elect representatives from among themselves to proceed with the litigation and the people’s court may issue a public notice inviting those entitled to participate in the action to register with the people’s court.⁸ Furthermore, the Consumer Rights Protection Law of the People’s Republic of China states that the China Consumers’ Association and authorised consumer associations shall be able to bring suit for acts which harm the legitimate interests of consumers.⁹ This is fairly similar to the situation in the United States where class action lawsuits often yield large settlements. Although no amount of money can undo the harm caused by shady medical products, a monetary award may ease the financial burden of those who have spent much of their life savings on such products.

The Supreme People's Court Interpretation on Several Issues Concerning the Application of Law in the Trial of Public Interest Consumer Civil Litigation Cases¹⁰ provides guidance for practitioners as to how to proceed in consumer litigation cases. However, it is equally important for such information to be communicated to the general public, to ensure that consumers are aware of the full extent of their rights. The caveat here is that many patients, particularly the lower-income and middle-class, may not be able to afford the legal fees even if they are aware of their legal rights. Furthermore, not every case will result in a hefty award of damages; this will depend on the financial status of the defendant.

C. A Loophole is Closed

After Wei’s death, a final push was made to completely end all military-provided paid public services, closing a loophole which allowed military hospitals to contract out services to private operators.¹¹ This was the case at the cancer clinic in the military hospital where Wei underwent treatment. The hospital (the Second Hospital of Beijing Armed Police Corps) had contracted out services at its cancer clinic to a private operator which was part of the Putian-owned network of private hospitals.

The rise of the Putianese hospitals has partly been aided by the government’s underinvestment in public hospitals – over 8,000 of China’s 11,514 private hospitals are Putianese.¹² Given the ubiquity of such hospitals and the fact that many are poorly run, the government should launch an investigation into the medical practices of such hospitals – revoking licenses if necessary – and accelerate its implementation of healthcare reforms. These measures would tackle the root cause of the problem of misleading advertisements more effectively than imposing restrictions on Web giants like Baidu, which can hardly be expected to possess the expertise necessary to vet healthcare advertisements. It is inevitable that some undesirable listings will slip through Baidu’s net.

That said, an investigation and healthcare reforms would undoubtedly take years and would need to be accompanied by a diminishing tendency towards corruption. For now, the new advertising rules are a timely intervention.

III. HOW SHOULD CHINA SHIELD CONSUMERS FROM THE DANGERS OF INACCURATE ADVERTISING?

Given the rise in ownership of mobile devices in China¹³ and increased exposure to online advertisements, it is apposite to consider other policies which could keep patients out of harm’s way. The first would be a vigorous campaign to educate consumers about the pitfalls of consuming drugs or undergoing procedures that seem too good to be true. Apart from reaching high school and university students, notices can also be disseminated at workplaces and broadcasted over television, reaching the middle-aged and elderly. Efforts should be concentrated in areas with a high density of private hospitals to maximise impact.

Patients who seek medical advice on the Internet largely do so out of desperation – as was the case with Wei and his parents – and are likely to have consulted reputable doctors before pursuing other options. It would thus be helpful if the medical profession were to be more vigilant in warning patients about the dangers of seeking medical treatment via unregulated means before patients are inclined to do so. Netizens’ comments in the aftermath of the Baidu saga show that many have high expectations of the advertisements they see in print and non-print media. A sustained counter-advertising campaign by the government could go a long way towards tempering such expectations. In the long term, education will have the added benefit of inculcating a sense of personal responsibility among Chinese consumers, ensuring that they thoroughly research medical products before purchase. Secondly, a relaxation of Chinese Internet censorship policies – known colloquially as the ‘Great Firewall of China’ – would enable consumers to undertake comprehensive research on various medical procedures and products. Currently, websites like Google and The New York Times are banned in China and Baidu has virtually monopolised the sphere of online advertising, severely limiting netizens’ options. As Wei himself noted in his online post, he had to rely on a Chinese friend in the US to use Google to search for information on his treatment after the treatment failed. It was only then that he discovered that “American hospitals had long stopped using the technology due to poor results in clinical trials”. In Wei’s case, access to Google prior to undergoing treatment may very well have saved his life.

While it is possible to bypass the Internet censorship, it would be patently unfair if the Internet savvy alone were able to access basic healthcare information. (It is worth noting that Wei himself was a computer science student, yet he had to rely on a friend in the US to use Google.) Wide swathes of the population would be left vulnerable to the predatory practices of unscrupulous private operators. China’s political motives for Internet censorship should not automatically preclude the possibility of making the ‘Great Firewall of China’ more porous and allowing users to access a greater variety of websites. Consumers who are better informed are far less likely to undergo unsafe medical procedures. This would alleviate the burden on China’s burgeoning healthcare system and improve China’s international image.

IV. CONCLUSION

Wei’s death led many to blame Baidu for its ‘evil’ practice of allowing healthcare providers to pay large sum for highly-ranked advertisements on its site. It is arguable that some of this blame is misplaced as the root cause of the problem lies in China’s draconian censorship practices, its underfunded healthcare system and the private operators which have crept in to fill the vacuum. As with any complex issue, there are no quick or easy answers. Only time will tell whether the Chinese authorities will be able to muster the political will and resources to ensure that their countrymen are able to avoid a fate like Wei’s.

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[1] Paul Carsten, “China curbs Baidu healthcare ads business after student's death”, Reuters (May 9 2016) online: Reuters <http://www.reuters.com/article/us-baidu-regulations-idUSKCN0Y014U>.

[2] Ibid.

[3] Advertisement Law of the People's Republic of China, 1994, Art 14.

[4] Ibid, Art 41.

[5] Supra note 3 at Art 34.

[6] Supra note 3 at Art 43.

[7] E.g. the 2008 tainted-milk scandal or the recent discovery of sales of millions of illegal vaccines: Megha Rajagopalan, “China bars vaccine sales by drug wholesalers after scandal: state media”, Reuters (April 26 2016) online: Reuters <http://www.reuters.com/article/us-china-drugs-vaccines-idUSKCN0XM1FV>.

[8] Law of Civil Procedure of the People’s Republic of China, 1991, Art 55.

[9] National People’s Congress of the People’s Republic of China, Decision of the Standing Committee of the National People’s Congress on Revision of the Consumer Rights Protection Law of the People’s Republic of China as promulgated on October 23, 2013, effective March 15, 2014, Art 47.

[10] Legal Interpretation [2016], No 10.

[11] Ding Xuezhen, “Military leadership meets to hash out end to paid services”, Global Times (May 9 2016) online: Global times < http://www.globaltimes.cn/content/982007.shtml>. 

[12] Kou Jie, “Military cancer clinic deal under scrutiny”, Global Times (4 May 2016) online: Global Times < http://www.globaltimes.cn/content/981236.shtml>.

[13] Jacob Poushter, “Smartphone Ownership and Internet Usage Continues to Climb in Emerging Economies”, Pew Research Center (July 25 2016) online: Pew Global <http://www.pewglobal.org/2016/02/22/smartphone-ownership-and-internet-usage-continues-to-climb-in-emerging-economies/>

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Dead in the Water: The Nautical Fault Exemption of the Hague-Visby Rules

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Dead in the Water: The Nautical Fault Exemption of the Hague-Visby Rules

Phoebe Leau

The Hague-Visby Rules (“HVR”), devised nearly a century ago, are an anachronism. Today, they precede at least two other treaties¹ which were contrived with the intention to modernise existing laws on maritime carriage.² No doubt the HVR are a wellspring of academic controversy – they have been ruthlessly branded as “outdated”³ and nonsensical.⁴ The opprobrium is not wholly unjust: the modern phenomenon of containerisation (affreightment of goods by container), for instance, makes a complete farce⁵ out of the HVR’s exclusion of on-deck cargo.⁶

This essay addresses, in particular, Art IV(2)(a), which encapsulates the nautical fault exemption (“NFE”). The NFE immunises carriers from liability for loss or damage in consequence of any “act, neglect, or default of the master … or [its] servants … in the navigation or … management of the ship.” Broadly, it is theorised that the NFE has long outlived its utility. Its continued preservation therefore jeopardises cargo interests.

I. IS THE NFE AN ARTEFACT OF THE PAST?

Before the genesis of the NFE, carriers bore strict liability⁷ for all damage to cargo interests despite less-sophisticated tools of communications preventing them from managing the ship or its crew during voyage.⁸ Increasingly, carriers resorted to contractual exemption clauses to relieve themselves of extensive liability,⁹ to the detriment of cargo interests. The HVR was thus a legal mechanism by which the law attempted to strike a delicate balance between carrier and cargo interests: it establishes an ‘irreducible core’ of carrier obligations, but allows carriers to escape liability in exceptional circumstances,¹⁰ such as where carriers experience nautical fault.

At first blush, the NFE seems defensible. It serves as an apportionment of risks between cargo and carrier interests, such that the latter will not bear the full brunt of liability for crew, cargo, and vessel in a collision.¹¹ Additionally, since carriers tend not to be involved in the carriage of goods once the vessel departs from the port of loading, exonerating carriers from responsibility for the actions of those actually involved in the carriage is ostensibly fair.

The above, however, erroneously assumes that carriers remain incapable of controlling the vessel whilst it traverses the high seas today. In reality, it is evident that technological revolution renders the NFE otiose. Contemporary satellite technologies, for instance, enable continuous monitoring and control of ship operations (including the actions of the ship’s crew) through, inter alia, radar and GPS.¹² Carriers have also been held to comparatively higher standards of vessel management.¹³ Technology has rectified the very problem the NFE sought to alleviate – that a shore-based carrier loses control of the vessel upon its departure from the port.¹⁴ It also diminished the enormity of risks borne by carriers during the period of carriage, as increased control of the ship generally reduces risks of mischief and risks to cargo, crew or vessel.

In principle, risks should be borne by the party who is in a better position to obviate such loss.¹⁵ Against contemporary developments, the carrier, who is actually able to supervise the cargo while it remains at sea (through, inter alia, improved maritime technology or appointing competent mariners), is thus better poised to assume the risk of cargo damage. However, the NFE continues to foist upon cargo interests the burden of such risks, even though cargo owners can do effectively nothing to minimise or eliminate risks while the goods are in transit. It follows that, firstly, the NFE is excessively rigid and fails to accommodate changes to maritime practices; secondly, that risk allocation under the NFE is manifestly prejudicial to cargo interests, especially when one considers the broad range of actions (any “acts, neglect, or default”) contemplated by the provision.

II. OTHER SALIENT CRITICISMS

The NFE has been described as “conceptually awkward”, as it enables carriers to benefit from proving the negligence of shipboard personnel¹⁶ who are typically its agents¹⁷ and/or employees. This is arguably an aberration: the party which has access to how the loss occurred is ordinarily not required to show the fault of others, but rather that such loss occurred independently of its own fault.¹⁸ The NFE also defies time-tested legal doctrines such as vicarious liability¹⁹ (of the carrier through the errant mariner), and it is not altogether clear why the shipping context should be the exception to the norm.²⁰

Separately, the dissonance between the HVR and other international conventions for carriage of goods is conspicuous. The Hamburg Rules and the Rotterdam Rules have all expunged the NFE.²¹ Moreover, no equivalent of the NFE exists in treaties governing carriage by road,²² rail,²³ and air²⁴ – where carriers are prima facie liable until they prove the converse.²⁵ Significantly, the Warsaw Convention governing aviation transport was drafted in the same time period as the HVR; the defence of negligent navigation of the aircraft was, however, eliminated by the Hague Protocol of 1955. This absence of the NFE from these treaties per se underpins the fact that the Art IV(2)(a) is plainly antiquated.

III. IS THE NFE BEYOND SALVATION?

In practice, Courts are loath to interpret the NFE too liberally,²⁶ being very much alive to its notoriety. Judicial discretion in construction is thus exercised to limit the applicability of the NFE. The question is whether such discretion as exercised is capable of salvaging the inherent deficiencies in Art IV(2)(a). While acknowledging that ‘reading down’ the NFE can impede the force and frequency with which the NFE is applied, this writer contends that it is not.

As a preliminary note, Art IV(2)(a) governs all “[acts], neglect, or default”, and is not accompanied by any ‘qualification’ clause²⁷ specifying acts which fall outside the provision. By necessary implication, Art IV(2)(a) would exempt liability for wilful, intentional or reckless conduct.²⁸ The all-encompassing scope of Art IV(2)(a) is somewhat alarming. However, even if it does exclude intentional transgressions,²⁹ its ambit remains unduly expansive. This is immediately apparent from The Tasman Pioneer,³⁰ in which the Court opined that the NFE is only inapplicable to “damage with actual or imputed intent”, as envisaged in Art IVbis(4).³¹ It was further clarified that a carrier need not prove the bona fides of persons enumerated in the provision to avail himself of protection conferred by the NFE.³² On the facts, the master conducted himself disingenuously in pursuance of personal benefit, but not an intention to cause harm.³³ Absent the latter, the carrier could not be liable for the master’s mala fides – which include, inter alia, the falsification of the vessel’s course plot post-collision and attempted concealment.

Respectfully, the ruling in The Tasman Pioneer bodes ill for cargo interests. It is not disputed that masters are agents of the shipowner and, that under agency law, principals are not invariably liable for the deeds of its agent. However, this case signifies that cargo interests have effectively no recourse against the wrongdoings of shipboard personnel, unless they can show that the carrier’s agents or servants acted with actual or imputed intention to cause damage.³⁴ From the perspective of cargo interests, this is a nearly insurmountable evidentiary barrier. How can cargo owners, who are not usually privy to ship management and navigation at sea, be realistically expected to meet their burden of proof? In any case, there is no logical reason why a carrier should be liable for its servant’s barratry, but escape liability for other morally objectionable conduct of a lesser degree than barratry. The generosity with which carriers are treated therefore engenders tremendous injustice for cargo interests.

Apart from interpreting the term “acts”, the NFE may also be circumscribed by manipulating the terms “navigation” and “management of the ship”. It is well-established that “navigation” entails seamanship³⁵ and includes steering the wrong course.³⁶ In Gosse Millerd v Canadian Government Merchant Marine, Greer LJ (whose dissent the House of Lords endorsed on appeal) held that an alleged act will constitute ship management if it relates primarily to the care of the ship. However, if it relates solely or primarily to the cargo, it will not be an act of ship management.³⁷

The differentiation of cargo management from ship management is contentious – not least because such distinction can often be tenuous. In The Iron Gippsland³⁸ and The Eternity³⁹ respectively, the negligent operation of a gas tanker (designated for vessel protection) and a ship’s valve both amounted to cargo mismanagement, which fell beyond the ambit of the NFE. In contradistinction, the failure to secure tarpaulins to the ship’s hatches was construed as an act of ship management in The Hector,⁴⁰ as the structure in its entirety formed part of the ship’s defences.⁴¹

It is acknowledged, however, that subsequent decisions have cast doubt on The Hector and its instructiveness is suspect. Additionally, this writer observes that it is now more difficult for a carrier to invoke the NFE:⁴² in the later cases, courts have engaged in robust scrutiny of alleged acts of ship mismanagement to better safeguard cargo interests.⁴³ The corollary is that judicial discretion exercised in interpretation of Art IV(2)(a) aids in achieving an optimal balance of interests between the two camps. However, the very existence of a need to ‘read down’ the NFE highlights the sheer breadth of immunity granted under the provision, as well as its fundamental incompetence in coping with changing attitudes.

It bears mention that the distinction between ship and cargo management is susceptible to obfuscation by the involvement of containerised cargo. Containers can serve as the ship’s apparatus/equipment if supplied by the carrier,⁴⁴ or be construed as an extension of the ship’s superstructure.⁴⁵ Hence, there may be difficulties in discerning when, for example, the mishandling of containerised cargo during voyage might equate to a breach of Art III(2), or mismanagement of the ship as conceived by Art IV(2)(a) – each of which will produce vastly dissimilar consequences. If it falls within the latter category, the carrier is immune from liability irrespective of any breach of Art III(2).⁴⁶ This may result in the frustration of legitimate expectations of cargo interests, and is arguably unfair.

Where the NFE does apply, courts can do little to mitigate the hefty losses suffered by cargo interests. This is because Art IV(2)(a), in exempting liability for all loss and damage, can supersede breaches of other obligations in the HVR. In The Aconcagua,⁴⁷ the heating of a bunker tank caused the ignition of a cargo of dangerous chemicals; subsequently, an explosion transpired. Notwithstanding that the charterers failed to properly care for the cargo,⁴⁸ the Court found that they were protected by the NFE, as the heating of the bunker tank (for transfer to the engine room) constituted ship management.⁴⁹ This decision, if anything, epitomises the injustice to cargo interests perpetuated by the NFE. The charterers could not have escaped liability for contravening their obligations under Art III(2) but for the existence of Art IV(2)(a).⁵⁰ However, their liability under Art III(2) was ultimately subordinated to the NFE.

IV. CONCLUSION

Ironically, the very progenitor of the NFE — the U.S., by s 3 of the Harter Act⁵¹ — has since pressed for its deletion in Senate proposals for its new Carriage of Goods by Sea Act⁵² and the travaux préparatoires to the Rotterdam Rules.⁵³ If anything, this demonstrates that the NFE is in a state of obsolescence. The rigid insistence of Art IV(2)(a) on risk allocation in favour of carrier interests, for instance, accentuates the incapability of the NFE to adapt to contemporary developments in maritime carriage. Yet, this is to be expected when one ruminates upon the historical background of the HVR: its drafting and negotiations process was dominated by powerful ship-owning economies, which resulted in the over-representation of carrier interests. Additionally, the focus on ‘codifying’ industry practices as they stood rendered the HVR’s provisions overly specific and unpliable, leaving no room for the incorporation of subsequent transformations and changes.

In light of the shortcomings of the NFE, its deletion and substitution with ‘prima facie’ fault provisions in the Hamburg Rules and Rotterdam Rules is emphatically welcome. It may be that, very exceptionally, the allocation of risks under the NFE creates a fair compromise between cargo and carrier interests. This might be so in cases where, for example, the shipowner was unable to exert control over the vessel (perhaps due to breakdown in telecommunications).⁵⁵ Also, the deletion of the NFE may well increase the risks borne by carriers and cause a corresponding spike in freight rates.⁵⁶ Ultimately, however, it bears emphasis that cargo interests are in a more vulnerable and precarious position than carriers, for reasons highlighted above. Carriers should therefore bear higher risks than cargo owners while goods are in transit, so that the interests of both parties can be evenly balanced. The HVR falter in this respect, thus offering a disappointing compromise on cargo interests.

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[1] Hamburg Rules (1978); Rotterdam Rules (2008).

[2] E.g. Preamble of Rotterdam Rules.

[3] Myburgh, “Uniformity or Unilateralism in the Law of Carriage of Goods by Sea?” (2000) 31 VUWLR 355, 367.

[4] A New International Regime for Carriage of Goods by Sea (2012) 30 BJIL. 303, 320.

[5] Ibid.

[6] Art 1 (c).

[7] Liang & Li, “Abolishing the Exemption of Liability for Fault in Ship Management in the Nautical Fault Exemption System” (2006) China Oceans L.R. 537 at 542, 539.

[8] Supra note 4, 329.

[9] Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223, 236

[10] As enumerated in Art IV(2).

[11] Weitz, “The Nautical Fault Debate” (1997-1998) 22 TMLJ 581, 588.

[12] Supra note 11, 594.

[13] See e.g. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.

[14] Zeigler, “Liability of the Contracting Carrier” (2008-2009) 44 TILJ 329, 342.

[15] Supra note 11, 587.

[16] Ibid.

[17] E.g. Masters: Girvin, Carriage of Goods by Sea (Oxford: OUP, 2011), [1.40].

[18] Supra note 11.

[19] Faria, “New Times, New Players, and New Rules” (2008-2009) 44 TILJ 277, 299.

[20] Allocating Shipment Risks (1978) 4 Monash U.L.R. 117, 149.

[21] Supra note 7, 542.

[22] 1956 Convention on the Contract for the International Carriage of Goods by Road.

[23] 1980 Convention concerning International Carriage by Rail.

[24] 1933 Warsaw Convention.

[25] Supra note 11.

[26] Clarke, Maritime Law Evolving (Oxford: Hart Publishing, 2013), 143.

[27] See e.g. Art IV(5)(e) .

[28] Treitel, Carver on Bills of Lading (London: Sweet & Maxwell, 2005), 607.

[29] Which may well be the case in light of Art IVbis(4) read with Art IVbis(1).

[30] [2010] NZSC 37.

[31] Ibid, [13].

[32] Ibid, [21].

[33] Supra note 30, [34].

[34] Supra note 30.

[35] The Hill Harmony [2001] 1 Lloyd’s Rep 147, 159.

[36]  The Satya Kailash & Oceanic Amity [1982] 2 Lloyd’s Rep 465.

[37] [1928] 1 KB 717, 749.

[38] [1994] 1 Lloyd’s Rep 335, 358.

[39] [2009] 1 Lloyd’s Rep 107.

[40] [1955] 2 Lloyd’s Rep 218.

[41] Ibid, 234-235.

[42] Supra note 19.

[43] Cooke et al, Voyage Charters (Oxon: Routledge, 2014), [85.279].

[44] In Houlden & Co v. S.S. Red Jacket [1978] 1 Lloyd’s Rep. 300, the Court held that the standard of seaworthiness applied to “all of the ship’s equipment, including containers supplied to the shippers” (at 1401).

[45] Aladwani, “The Supply of Containers & Seaworthiness” (2011) 42 JMLC 185, 188.

[46] Art III(2) is “subject to the provisions of Art IV”.

[47] [2009] EWHC 1880.

[48] Ibid, [371].

[49] Ibid, [372].

[50] Hashmi, “Rotterdam Rules: A Blessing?” (2011-2012) 10 Loyola MLJ 227, 247.

[51] Harter Act of 1893, 46 U.S.C. §190-196.

[52] Supra note 26.

[53] UN Doc. A/CN.9/WG.III/WP.34 at [30].

[54] Sweeney, “UNCITRAL and the Hague Rules” (1991) 22 JMLC 511, 516.

[55] Mandelbaum, “Risk Allocation for Cargo Loss, Damage, and Delay” (1995-1996) 5 JTLP 1, 38.

[56] Supra note 19.

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The Disclosure of Medical Risks in Singapore and the case of Montgomery

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The Disclosure of Medical Risks in Singapore and the case of Montgomery

Keith Jieren Thirumaran

INTRODUCTION

There are three main areas that doctors engage in when practicing medicine: diagnosis, treatment and advice. In order for doctors to avoid negligence liability, they must meet the applicable standard of care expected of them. However, in the context of advice with respect to disclosure of risks, the test for determining whether a doctor is in breach of the applicable standard of care has attracted a considerable amount of attention. Singapore has retained the traditional doctor-centric test, but several overseas jurisdictions have since developed more patient-focused approaches – notably, the recent UK Supreme Court decision of Montgomery v Lanarkshire Health Board [Montgomery].¹ This article will examine the various tests used by courts both locally and overseas, after which it will be submitted that the status quo in Singapore should be maintained in light of compelling local circumstances.

TESTS USED LOCALLY AND OVERSEAS

The Singapore position pre-Montgomery

The current position in Singapore is embodied in the Court of Appeal case of Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy]² where the Court applied the Bolam-Bolitho test to the disclosure of risks in the medical context.

The Bolam-Bolitho test is the locus classicus for the standard of care required of doctors and comprises of two separate tests. The plaintiff must show that a doctor defendant has failed either of these tests in order to establish a breach of the standard of care.

The Bolam test, formulated in Bolam v Friern Hospital Management Committee,³ requires a doctor to have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This means that a doctor will not be found negligent as long as part of the medical profession agrees with what the doctor did, even if there is a body of opinion that takes the contrary view,⁴ and even if the court prefers one of the views over the other.⁵

The Bolitho test, formulated in Bolitho v City & Hackney Health Authority,⁶ is a threshold test of logic and consistency when accepting the opinion of medical peers. This comprises two stages: the expert must have directed his mind to the comparative risks and benefits of the matter; and the opinion must be a defensible conclusion, meaning that it must be internally consistent and should not ignore known medical facts.⁷

The main reasons the Court of Appeal in Gunapathy cited for applying the Bolam-Bolitho test was that judicial wisdom has its limits. A judge unskilled in medicine has no business adjudicating matters which medical experts themselves cannot agree on.⁸ Furthermore, excessive judicial interference would hamper the proper development of medical science, give rise to defensive medicine, and lead to higher medical costs and wastage of medical resources. ⁹

The development of the “prudent patient” approach

In the UK case of Sidaway v Bethlem Royal Hospital Governors [Sidaway],¹⁰ Lord Scarman in his dissent suggested moving from the Bolam-Bolitho approach toward a “prudent patient” test similar to that found in the American case of Canterbury v Spence.¹¹ In the Australian case of Rogers v Whitaker [Rogers],¹² the High Court favoured Lord Scarman’s dissent¹³ and decided the case on the basis of what risks a “prudent patient” would wish to know, save for the exception of therapeutic privilege cases. The Canadian Supreme Court case of Reibl v Hughes¹⁴ and the Malaysian Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor¹⁵ have also taken similar approaches to the disclosure of risks in the medical context.

In the UK itself, the majority decision in Sidaway is no longer good law. The case has since been effectively overruled by the recent Supreme Court decision of Montgomery.¹⁶ The Montgomery approach¹⁷ is that a doctor must disclose risks that a reasonable person in the patient’s position would attach significance to, as well as risks that the doctor should reasonably be aware that the actual patient would attach significance to. The patient need not question the doctor,¹⁸ though the doctor must engage in a proper dialogue with the patient to ensure that the latter is aware of and understands the risks.¹⁹

There are three exceptions to the above test where a doctor does not have to disclose the relevant risks.²⁰ The first is when the patient does not wish to know any further information.²¹ The second is the therapeutic privilege exception which allows a doctor to withhold information from the patient if the doctor reasonably considers that its disclosure would be seriously detrimental to the patient’s health. ²². The third is in circumstances of necessity such as when treatment is required urgently but the patient is unconscious or otherwise unable to make a decision.²³

Whether the risk is considered material enough to be disclosed depends on various factors such as magnitude of risk, nature of risk, effect of its occurrence upon the life of the patient, importance to patient of the benefits from treatment, alternative treatments and risks of those alternative treatments (“Montgomery Factors”).²⁴

Singapore’s stance on the “prudent patient approach”

Although the Singapore High Court acknowledged Montgomery in the cases of Thong Jiang Andrew v Yue Wai Mun & Anor ²⁵ and Hii Chii Kok v Ooi Peng Jin London Lucien and another,²⁶ it left the question of which test should apply open (Bolam-Bolitho or Montgomery). Nonetheless, on the existing facts, it seems that the Singapore Courts favour the Bolam-Bolitho test.

Firstly, the Court of Appeal in Gunapathy, in the context of advice and disclosure of risks, did not find favour with Lord Scarman’s dissent in Sidaway, the foundations for the prudent patient approach as discussed above. Instead, the Court in Gunapathy preferred to follow the majority in Sidaway in applying the Bolam-Bolitho test to the context of advice and disclosure of risks.²⁷

Secondly, the Court in Gunapathy also noted that Lord Bridge’s qualification in Sidaway (that if there was a substantial risk and no cogent clinical reason for non-disclosure, a Judge can conclude that no respectable medical expert would have failed to disclose that risk) was already subsumed under the Bolitho test and was therefore unnecessary.²⁸

Thirdly, Chief Justice Sundaresh Menon, in his address at the Opening of the Legal Year 2016, has also emphasised the importance of preventing doctors from practicing defensive medicine.²⁹ The Learned Chief Justice also promoted the use of alternative dispute resolution such as mediation, as opposed to litigation, for resolving medical disputes.³⁰ This is further evidence of the importance of reducing medical litigation in Singapore, which is more in line with the Bolam-Bolitho test. The Montgomery test, on the other hand, may subject doctors to greater legal liability.

COMMENTARY ON THE FUTURE POSITION IN SINGAPORE

Since the position in the UK (which Singapore was following) has been changed by the case of Montgomery, the Singapore Court of Appeal will have to consider this and other international developments to determine which test should apply in Singapore. While some may be quick to cast their vote for a change to Montgomery, this author believes that Singapore should stick to its current position and uphold the Bolam-Bolitho test.

Underlying policy considerations in support of the Bolam-Bolitho test

Policy reasons form the basis for sticking to the Bolam-Bolitho test, in particular, hampering the proper development of medical science, giving rise to defensive medicine, higher medical costs and wastage of medical resources.³¹ As Chief Justice Menon pointed out in his address, a fear of litigation would distort medical practice and raise insurance costs.³² These are fundamental policy considerations that underpin the Bolam-Bolitho test and they are still as strong today.

At first glance, it would appear that the learned Chief Justice’s concerns were already considered by the Supreme Court in Montgomery. The Supreme Court in that case disagreed that there was a possibility of increased litigation and defensive medicine from its approach. Furthermore, the Court opined that its approach would result in patients being aware that the outcome of treatment is uncertain, and that its approach allows patients to take responsibility for the ultimate choice of undergoing that treatment.³³ This, in the Court’s opinion, would therefore lower the likelihood of litigation in the event of an adverse outcome.³⁴

However, this author respectfully disagrees with the views expressed in Montgomery. While it may be thought that less litigation would directly translate into less defensive practices, this is not necessarily true. The very fact that doctors under the Montgomery approach have to disclose more risks is itself a defensive practice which would lead to higher costs. Doctors would never be sure where to draw the line, and would “play safe” by disclosing many, if not all, the risks associated with the treatment.

In Montgomery, the Court failed to take into account the increased medical costs involved with their approach.³⁵ The defensive medical practice of disclosing more risks of treatment (in order to avoid liability for failing to disclose a risk) would lead to “higher medical costs and wastage of precious medical resources”.³⁶ More time will be needed to disclose and explain risks, which could have been spent treating another person or saving a life (which the Court in Montgomery did not discuss). Time wastage may be exacerbated where a patient who has been notified of many new risks is inclined to further question the doctor for explanations, elaborations, and evaluations on them, regardless of the significance of the risk. The Montgomery approach may raise medical costs, going against the aims that the learned Chief Justice and the Court in Gunapathy had sought to achieve.

Furthermore, even with the therapeutic privilege exception, disclosing every conceivable risk to a patient that is not “at-risk” can still cause unbalanced decisions and frighten the patient.³⁷ A patient may opt for a more expensive treatment or refuse otherwise viable treatment when frightened by an insignificant risk. It is therefore submitted that in order to avoid higher medical costs and wastage of resources, the decision of which risks are significant enough to the patient and need to be disclosed should best be left to the judgment of the medical profession.

Lastly, the Court in Montgomery felt that imposing legal obligations was necessary to force doctors to engage in a discussion with their patients. However, as Baroness Hale said in Gregg v Scott,³⁸ doctors are motivated by their natural desire and professional duty to do their best for their patients. It is this author’s opinion that a doctor would therefore engage in the discussion with their patients, even without legal obligations, as long as the doctor feels that it would be in the patient’s interest to know of a particular risk.

Montgomery’s human rights focus is inapplicable to Singapore

The decisions in the UK, such as Montgomery, may not be applicable in Singapore. This is because, as stated by the Singapore High Court, the UK decisions may have been influenced by the UK’s emphasis on human rights and autonomy.³⁹ This emphasis on human rights and autonomy in the UK may be attributed to the European Convention of Human Rights [ECHR],⁴⁰ enforced under the Human Rights Act [HRA].⁴¹

However, neither the ECHR nor the HRA is binding on Singapore Courts.⁴² Therefore, in the absence of any rights-based legislation, the Singapore Courts may not be inclined to adopt an approach, such as Montgomery, which is based on a strong emphasis of Human Rights.⁴³

Bolam-Bolitho and Montgomery tests likely to reach the same conclusion

The Bolam-Bolitho test would, in this author’s opinion, already encompass the bulk of the Montgomery approach. It is submitted that the large majority of risks disclosed under the Montgomery approach would already be disclosed under the Bolam-Bolitho test, ultimately giving rise to same legal conclusions.

Firstly, if a doctor is aware that his patient would attach significance to a particular risk, then in the absence of cogent medical reasons such as the therapeutic privilege exception, there appears to be no reason why that doctor would not disclose that risk to the patient. Therefore, it appears that any reasonable doctor would disclose risks that he is aware his patient finds significant, thereby satisfying the Bolam test, while also satisfying the Montgomery test.

Secondly, even in the absence of any cognisance of specific significance to his patient, a doctor would disclose risks that the doctor believes should be disclosed. A doctor is likely to take into account the various Montgomery Factors listed above (save for “importance to patient of the benefits from treatment”) when making an assessment of what to disclose to a patient. Therefore, save for the internal thoughts of a patient, a reasonably doctor who satisfies the Bolam test by considering the Montgomery Factors would satisfy the Montgomery test and disclose all material risks.

Furthermore, in Singapore the minimum that the Bolam test requires a reasonable doctor to do would be to adhere to the Singapore Medical Council’s Ethical Code and Ethical Guidelines [Ethical Code].⁴⁴ The Ethical Code requires doctors to keep a patient “adequately informed” of his treatment options so that “he is able to participate in decisions about his treatment”.⁴⁵ The Ethical Code also requires doctors to “provide adequate information” so that a patient can make “informed choices”.⁴⁶ As the wording is notably broad, it is highly probable that a doctor which satisfies the provision of “adequate information” under the Bolam test is likely to have disclosed all material risks and thereby satisfy the Montgomery test.

Thirdly, there is no risk of the medical profession exploiting the Bolam-Bolitho test. This is because if the responsible body of medical men would not have disclosed the risk, and if this is not founded on a logical basis, the Bolitho test would then step in.⁴⁷ The Bolitho test is not an invasive inquiry into the merits of the medical opinion before the Court.⁴⁸ However, if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of, the Court should interfere on the authority of Bolitho.⁴⁹ This is especially so when the disclosure of that particular risk was so obviously necessary in order for the patient to make an informed choice.⁵⁰ An example provided by the Court was if the risk is substantial, of grave consequences and there is no cogent clinical reason for omitting to disclose the risk.⁵¹ Therefore the Bolitho test will help to catch risks that should be disclosed under Montgomery but where the medical profession as a whole would not have done so.

The Montgomery test is impractical

Even with the practical similarities highlighted above, it is acknowledged there are a handful of risks that a prudent patient would want disclosed that a reasonable body of medical men would not have disclosed. This handful of risks would be caught by the Montgomery approach but would not have been caught under the Bolam-Bolitho test. The existence of these risks stem from the main difference between the Bolam-Bolitho test and the Montgomery approach: the perspective from which the test is applied.

It is submitted that the Montgomery test provides a very artificial guideline to follow and it would not be realistic to expect a doctor to adhere to such a test. While it is acknowledged that a doctor can attempt to think from the perspective of a reasonable patient, and thereby theoretically be able to cover some of the material risks from a patient’s perspective, the reality is that a doctor cannot tell with any precision or certainty what a reasonable patient would wish to know. Therefore, in their bid to escape liability under the Montgomery test, a doctor would practice defensive medicine by simply disclosing every conceivable risk. This is undesirable as it would lead to the aforementioned higher medical costs and wastage of medical resources.

Therefore, applying the Montgomery approach only gives the appearance of human rights and autonomy. Instead, the Montgomery approach would lead to more prevalent defensive practices as well as unnecessarily cause a greater number of doctors to be found negligent merely due to the unrealistic expectation of predicting what a prudent patient would want to know.

CONCLUSION

In conclusion, the Singapore Courts should not feel pressured to accept the approaches adopted in other jurisdictions but should choose the approach that is most desirable to the Singapore context and society. It may well be that maintaining the status quo could be the better approach for Singapore.

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[1] Montgomery v Lanarkshire Health Board, [2015] UKSC 11.

[2] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] 2 SLR 414.

[3] Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582 at 587.

[4] Ibid.

[5] Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635.

[6] Bolitho v City & Hackney Health Authority, [1998] AC 232 at 241-242.

[7] Supra note 2 at [64] – [65].

[8] Supra note 2 at [144].

[9] Ibid.

[10] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871.

[11] Canterbury v Spence, (1972) 464 F 2d 772.

[12] Rogers v Whitaker, (1992) 175 CLR 479.

[13] Ibid at [10].

[14] Reibl v Hughes, (1980) 114 DLR (3d).

[15] Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593.

[16] Supra note 1.

[17] Supra note 1 at [87].

[18] Supra note 1at [58].

[19] Supra note 1 at [90].

[20] Supra note 1 at [85] and [88].

[21] Supra note 1 at [85].

[22] Supra note 1 at [88].

[23] Supra note 1 at [88].

[24] Supra note 1 at [89].

[25] Thong Jiang Andrew v Yue Wai Mun & Anor, [2015] SGHC 119 at [36] – [37].

[26] Hii Chii Kok v Ooi Peng Jin London Lucien and another, [2016] SGHC 21.

[27] Supra note 2 at [142].

[28] Supra note 2 at [141].

[29] Chief Justice Sundaresh Menon: Response at the Opening of the Legal Year 2016 (11 January 2016), online: <http://www.supremecourt.gov.sg/Data/Editor/Documents/Response%20by%
20CJ%20%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf> at [43].

[30] Ibid.

[31] Supra note 2 at [144].

[32] Ibid.

[33] Supra note 1 at [93].

[34] Ibid.

[35] It is suggested that the UK’s National Health Service may have been a contributing factor that would have downplayed the concern of patients’ medical costs for the Court in Montgomery.

[36] Supra note 2 at [144].

[37] Tong Seok May Joanne v Yau Hok Man Gordon, [2012] SGHC 252 at [76].

[38] Gregg v Scott [2005] UKHL 2 at [217].

[39] D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [D’Conceicao], [2011] SGHC 193 at [123]; Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC 252 at [64] and [172].

[40] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

[41] Human Rights Act 1998 (UK), c 42.

[42] Supra note 38.

[43] Ibid.

[44] Singapore Medical Council, Ethical Code and Ethical Guidelines, online: <http://www.healthprofessionals.gov.sg/content/dam/hprof/smc/docs/guidelines/SMC%20Ethical%20Code%20and%20Ethical%20Guidelines.pdf>.

[45] Ibid at 4.2.2.

[46] Ibid at 4.2.4.

[47] Supra note 2 at [141].

[48] D’Conceicao at [40].

[49] Ibid at [124].

[50] Supra note 10 at 900.

[51] Ibid.

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Championing Champerty

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Championing Champerty

Loo Fang Hui

INTRODUCTION

In the 1998 film “A Civil Action”, John Travolta plays Jan Schlichtmann, a flamboyant and tenacious American personal-injury attorney who engages clients almost exclusively on a contingent fee basis. Under such an agreement, the lawyer agrees to render professional services in obtaining a judgment or settlement for the client, in exchange for a fee equal to a certain percentage of the ultimate recovery. Where the claim is defeated and no recovery is made, the lawyer receives no fee whatsoever. Film-viewers follow Schlichtmann as he absorbs a torrent of legal costs and resources, even driving his firm to the brink of bankruptcy, in pursuit of a meritorious but nebulous and unduly drawn-out claim which is contested at every turn.

While all-or-nothing contingent fee agreements may make for dramatic Hollywood fodder, they do not always enjoy the same unanimous support in the legal sphere. The common law has traditionally condemned such agreements as a form of champerty. In Wallersteiner v Moir,¹ Lord Denning MR stated the general rule in the following terms:

In its origin champerty was a division of the proceeds (Campi partitio). An agreement by which a lawyer, if he won, was to receive a share of the proceeds was pure champerty... It mattered not whether the sum to be received was to be his sole remuneration, or to be an added remuneration (above his normal fee), in any case it was unlawful if it was to be paid only if he won, and not if he lost.

This essay seeks to outline the arguments for and against champertous agreements, before exploring whether such agreements have a role to play in our evolving legal landscape. Ultimately, I argue for the increased liberalisation of champertous agreements, in the name of enhancing access to justice.

HOW CHAMPERTOUS AGREEMENTS WORK

In the legal domain, champertous agreements often take the form of a lawyer offering to take up cases brought by clients who are unable to pay their legal fees upfront. In exchange for legal services, the client agrees to pay the lawyer a portion of the settlement or recovery if the claim is successful. The amount paid usually amounts to a higher sum than what the lawyer would have received under a conventional fee system. This is often referred to as a contingent fee agreement.

Variations on the contingent fee agreement also exist, such as the uplift fee agreement, where a basic minimum legal fee is agreed upon, but an additional sum is payable to the lawyer if the claim is successful.

Such agreements are generally referred to as champertous or conditional fee agreements, as payment of legal fees is conditional upon the success of the claim. Under such agreements, a person that is not well-to-do can nevertheless engage a lawyer, with the obligation to pay largely arising only if the claim is successful. The client is put at no financial risk if the claim is unsuccessful, as the burden is borne by the lawyer.

While such fee agreements seem like a surefire way to increase access to justice by enabling the less wealthy to have their day in court, the concept has seen more than its fair share of criticisms.

TRADITIONAL CRITICISMS

Critics have long contended that champertous agreements pose a risk to the sanctity of the legal industry. They argue that such agreements could tempt lawyers to cherry-pick the strongest claims as they would be investing their own time and money into uncertain prospects of recovery. Far from guaranteeing access to justice, champertous agreements could indeed have the opposite effect.²

There exists the fear that champertous agreements may tempt lawyers to inflame damages, suppress evidence, or even suborn witnesses for their own personal gain.³ This may potentially become the norm in a legal market where attorneys become financially invested in the suit, concerned with achieving a higher rate of return through an increased number of clients and suits. This could lead to a reduction in the quality of legal work and the commitment to principles of justice, as lawyers would be motivated to seek the quickest methods of settling a claim and getting a pay-out, instead of working towards the most beneficial solution for their clients. The role of a lawyer as an impartial advocate of his client's cause would correspondingly be perverted.⁴

Another criticism is the inevitable consequence that those who are forced to rely on such agreements end up paying much more for identical services than the wealthy, who are able to afford legal services charged on a conventional basis.⁵ This is especially apparent for claims involving large sums. While the wealthy client who can afford conventional legal fees pays a flat hourly rate for legal services, the impecunious client relying on a champertous agreement pays a percentage of the sum recovered, which may end up being much higher than the conventional rate.

This may be perceived as unjust and unfair discrimination, in essence offering “access to justice” to the impecunious at a significant mark-up.

THE POSITION IN SINGAPORE

All these criticisms seem to have been acknowledged locally, with s 107 of the Legal Profession Act⁶ prohibiting solicitors from acquiring any interest in any suit, action or proceeding, and from entering into agreements which provide for payment only if the claim is successful. Similarly, Rule 18 of the Professional Conduct Rules⁷ expressly prohibits contingent fee agreements. Both provisions seem to be premised on the conventional wisdom that advocates and solicitors must maintain their independent and professional standing (unaffected by any personal interest in the outcome of the matter) in order to be able to act effectively in representing the client's interests.⁸ Contravention of the aforementioned provisions may lead to disciplinary sanctions, including the offending lawyer being struck off the rolls.

The SGHC in Law Society of Singapore v Kurubalan [Kurubalan]¹⁰ recognized that a key element in effectively representing a client's interest is the ability of the lawyer to maintain a sufficient sense of detachment so as to be able to discharge his duty to the court. This duty ultimately paramount and trumps all other duties.¹¹

Such is the commitment of the Singaporean courts to preserve justice and safeguard confidence in the profession that the doctrine has been extended as a general principle beyond the confines of court proceedings. Steps have been taken to bar champertous agreements in other areas of legal work such as arbitration,¹² or even where local lawyers are involved in proceedings brought in foreign jurisdictions.¹³

VALID CONCERNS OR EXAGGERATIONS?

However, are such concerns well founded? While it is conceded that champertous agreements may potentially be abused, it is also undeniable that they allow cases to be brought which would otherwise never have had their day in court.

While lawyers may cherry-pick the most meritorious or profitable cases, this is surely only confined to the pool of potential cases where the claimant was in any case unable to afford conventional legal fees. There is no reason why less meritorious claims cannot continue to be brought by claimants willing and able to pay conventional legal fees. While the claims which are both unfunded and unmeritorious may continue to go unheard, this in no way detracts from the fact that champertous agreements can and will lead to a net increase in access to justice.

For truly meritorious claims, financial constraints will no longer be a barrier to justice. Although the claimant may be paying a higher proportion of legal fees than in a comparable claim with a conventional fee agreement, it must not be forgotten that the alternative is to recover nothing at all. Surely some recovery is better than none?

While this is a lacuna arguably fillable by pro bono, it is submitted that the local pro bono scene is not yet sufficiently developed to fully cater to the needs of society. It must first be acknowledged that commendable efforts and resources are being put in by the authorities, leading to more and more lawyers dedicating time to pro bono. However, it is undeniable that there is still a strata of society unable to avail themselves of publicly available pro bono services, perhaps due to the stringent means testing conducted by entities such as the Legal Aid Bureau.¹⁴ Unfortunately, such categorisation is unavoidable as long as manpower constraints remain. Until the day our pro bono system is sufficiently comprehensive and so well-staffed that it can cater to all meritorious but unfunded claims, it is submitted that champertous agreements should step in to provide some relief.

As for the concern that legal work will suffer as lawyers become more profit-focused, it is arguable that the converse could occur as well. Where lawyers stand to gain more or lose everything from each case, they could well be motivated to work even harder to champion their client's cause.

While some doubts may still remain regarding the potential abuses, it is submitted that we should not be ruled by fear. There is no clear evidence that relaxing the doctrine of champerty will definitely lead lawyers to pervert the law to win at all costs. Concerns regarding the possibility of profit-driven lawyers abandoning their duties to the court and instead abusing the legal process for personal gain, while valid, can be addressed through strict regulations. When lawyers “play by the rules”, champertous lawsuits can be fought just as honourably as those conventionally funded.

A SLOWLY CHANGING LEGAL LANDSCAPE?

There is some evidence that the local stance on champerty is slowly softening. The SGHC in Kurubalan recognized two previous local decisions¹⁵ concerning disciplinary proceedings arising out of champertous agreements. In both instances, the offending solicitors were struck off the roll. The court in Kurubalan however went on to dismiss the two decisions as dated and of “limited use or relevance”,¹⁶ instead proclaiming that the starting point for sentencing in such cases ought to be a period of suspension.¹⁷

In addition, the court took the deliberate step of clarifying that it was permissible and even honourable for a lawyer to act for an impecunious client in the knowledge that he would likely only be able to recover his appropriate fees if the claim was successful. This is premised on the idea that where a lawyer has examined a client's case and concluded in all honesty that there is a good cause of action or defence which, but for the client's impecuniosity would likely be litigated, then he would be doing no wrong to take on such an engagement.¹⁸

The decision in Kurubalan has since been construed as a local exception to the doctrine of champerty,¹⁹ and the apparent relaxation of the court’s stance on champerty has been extended recently in SATS Construction v Islam Md Ohidul [SATS]²⁰ to cover pro bono cases. In SATS, Debbie Ong JC held that there was no reason why legal costs should not be awarded when the pro bono lawyer had rendered substantial work.²¹ In both cases however, the courts drew the line at champertous agreements where fees are calculated as a percentage of or on the basis of the amount recovered in the claim.

With respect, it is submitted that Singapore is well-poised to go a step further and endorse a restricted version of champerty where fees may be derived from the amount recovered beyond a minimum legal fee. This might in fact further incentivise lawyers to act for impecunious clients with meritorious claims, giving a welcome boost to access to justice in Singapore.

As fears regarding the potential perversion of the law understandably remain, perhaps a cue can be taken from Australia, where limited forms of champerty have been legalised in some states. The Queensland Legal Profession Act [QLPA]²² provides a fine example, where conditional costs agreements involving uplift fees are allowed but subject to strict limits. Under the QLPA, where a cost agreement involves an additional uplift fee payable only on the successful outcome of the claim, such a fee is capped at 25% of the legal costs, and an estimate of the uplift fee must be provided before the agreement is signed.

The QLPA strikes an appropriate balance between the merits of increased access to justice and the perils of unrestrained and profit driven contingent fee agreements. Under an uplift fee agreement, the basic legal fee payable is usually lower than commercial rates, making it more affordable. If the claim is unsuccessful, the client need only pay the discounted basic legal fee. However, if the claim is successful, the client then pays the additional uplift fee out of the monies recovered such that the lawyer receives a total sum of remuneration similar to or slightly higher than conventional rates. Where clients are impecunious and unlikely to be able to pay any substantial legal fees for an unsuccessful claim, the availability of such a fee agreement might incentivise lawyers to bear the risk and take on such a claim.

Similarly, the United Kingdom has decriminalised champertous agreements in 1967.²³ In addition, conditional fee agreements are now permissible under the s 58 of the Courts and Legal Services Act,²⁴ albeit subject to certain conditions. This includes requiring the agreement to be in writing, as well as compliance with other conditions as may be prescribed by the Lord Chancellor.

It is submitted that Singapore can and should adopt a similar stance which could greatly enhance access to justice whilst restraining unscrupulous lawyers from abusing the system.

CONCLUSION

While some risks may remain, the potential of champertous agreements to carve out a substantial new avenue for access to justice cannot be ignored. As long as robust regulations and sufficient supervision remain in place, potential abusers of the system can likely be kept in check. Other common law jurisdictions such as the United Kingdom and Australia have already largely embraced champerty, and it is high time Singapore joins their ranks in championing champerty.

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[1] Wallersteiner v Moir (No 2), [1975] QB 373 at 393.

[2] Law Society of Singapore v Kurubalan [2013] SGHC 135, [2013] 4 SLR 91 at [27].

[3]M P Furmston, ed, Cheshire, Fifoot and Furmston's Law of Contract, 2nd ed, (Singapore: Butterworths Asia, 1998) at 639.

[4] Contingent Fee: Champerty or Champion, Arthur L. Kraut, 21 Clev. St. L. Rev. 15 (1972).

[5] Supra note 2, at [27].

[6] Legal Profession Act (Cap 161, 2001 Rev Ed Sing), s 107.

[7] Legal Profession (Professional Conduct) Rules 2015 (S 391/2011 Sing), r 18.

[8] Jeffrey Pinsler SC, Ethics and Professional Responsibility: A Code for the Advocate and Solicitor, (Singapore: Academy Publishing, 2007).

[9] Supra note 6, at s 83(2)(j).

[10] Supra note 2.

[11] Supra note 2 at [45].

[12] Otech Pakistan Pvt Ltd v Clough Engineering, [2006] SGCA 46, [2007] 1 SLR (R) 989 at [38].

[13] Supra note 2 at [64]-[66].

[14] Legal Aid Bureau, “Do I Qualify for Legal Aid?” (1 July 2016), online: Ministry of Law <https://www.mlaw.gov.sg/content/lab/en/eligibility/do-i-qualify-for-legal-aid.html>.

[15] See Law Society v Chan Chow Wang, [1974] SGHC 16, [1974-1976] SLR (R) 237 and Lau Liat Meng v Disciplinary Committee, [1967] SGPC 1, [1965-1967] SLR (R) 641.

[16] Supra note 2 at [69].

[17] Ibid at [78].

[18] Ibid at [86].

[19] Reynard Chua, “The Future of Champerty in Singapore?”, online: (2013) 5 Juris Illuminae 6 <http://www.singaporelawreview.com/juris-illuminae-entries/2015/the-future-of-champerty-in-singapore>.

[20] SATS Construction v Islam Md Ohidul, [2016] SGHC 99.

[21] Ibid at [19].

[22] Legal Profession Act 2007 (Qld), s 324.

[23] Supra note 2 at [62]-[63].

[24] Courts and Legal Services Act 1990 (UK), c 41.

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Application of Muslim Law and the Survivorship of Joint Tenancies in Singapore

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Application of Muslim Law and the Survivorship of Joint Tenancies in Singapore

Muhammad Nurshazny bin Ramlan

INTRODUCTION

The enactment of the Administration of Muslim Law Act [AMLA]¹ barely a few months after Singapore's independence followed the need to “make provision for regulating Muslim religious affairs”.² AMLA only covers Muslim personal law which “governs a person's family matters”,³ such as divorce and succession or inheritance. This article will discuss (1) the faraid, or the Islamic law of succession, in the context of AMLA; (2) the persuasiveness of fatwa, or religious rulings issued by the Islamic Religious Council of Singapore (MUIS); and (3) how faraid and fatwa come together where the right of survivorship arises in the succession of a deceased Muslim's joint tenancy. As the Syariah Court’s jurisdiction is limited to adjudicating Muslim divorces, the courts referred to hereafter are the State Courts and the Supreme Court of Singapore.

I. Muslim Personal Law on Joint Tenancy

MUIS is the statutory body created under AMLA to advise on and administer Muslim law in Singapore.⁴ Under s 32 of AMLA, MUIS is empowered to form a Legal Committee and issue a fatwa either upon request (by private parties or the courts⁵) or whenever it wishes to.⁶ These fatwas are written by MUIS scholars on behalf of the local Muslim community. However, since a fatwa is merely a non-binding opinion,⁷ a court has the discretion to accept or reject the fatwa as it deems fit.

In Singapore, the faraid is governed by ss 111 and 112 of AMLA. They require the estate of “any Muslim person domiciled in Singapore dying intestate” to be subject to faraid, save for where “Malay custom” apply.⁸ MUIS publicly issued a fatwa in 2008 about the faraid position on joint tenancies,⁹ following the Supreme Court decision in Shafeeg bin Salim Talib and Anor v Fatimah bte Abud bin Talib and Ors [Shafeeg]. The fatwa opined that in the absence of express alternative arrangements or agreements such as gifts inter vivos or vows, the surviving joint tenant cannot have full ownership of the property and is only entitled to 50 percent or a “half-share” of its value. The remaining 50 percent belongs to the estate of the deceased and would be distributed according to faraid. This fatwa is supported by the faraid principle that a deceased person’s estate constitutes everything that could be considered as her assets at the time of death. These assets would be part of her estate as long as they belonged to her by personal effort, or by way of a gift or will, or by faraid.¹¹ Assets excluded from this rule are those that have been disposed of as gifts inter vivos, by vows, or by will.

This position in faraid runs contrary to that in general law, where the central feature of joint tenancy – the right of survivorship– assumes that there are no ‘shares’ in the property. The right of survivorship prescribes that the interest of a joint tenant is extinguished upon her death, enabling her interest to be ‘survived’ by her other co–owners.¹² The death of a co-owner can be reflected in the Torrens system by an update of the Land Register. This will result in the surviving co-owner becoming the registered sole-proprietor of the property.¹³

II. Shafeeg on the Limits to the Application of Muslim Law to Joint Tenancy in Singapore

The facts in Shafeeg involved a married Muslim couple who registered as joint tenants of a property under the Land Titles Act [LTA]¹⁴ and Land Titles (Strata) Act [LTSA].¹⁵ When her husband died intestate, the respondent widow gave the Land Registry a Notice of Death and subsequently assumed sole-proprietorship of the property. The appellants were the administrators of the late husband’s estate. Relying on a MUIS fatwa that had previously been issued to the parties, the appellants argued that the “half-share” belonging to the deceased by virtue of the joint tenancy could not be survived by the respondent and must be distributed as part of his estate.

Chan Sek Keong CJ (as he then was) presided over the case in the Court of Appeal. He recognised that while property law in Singapore is governed by common law and legislation such as the LTA and LTSA, land-owning Muslims are simultaneously subject to Muslim personal law in relation to their legal capacity as Muslims.¹⁶ His Honour went further to clarify how Muslim personal law ought to be applied in Singapore by citing case law from Singapore, Malaysia, and India: (i) that Muslim personal law only applies if expressly stated by statute; and (ii) that fatwas are not binding on the courts.

i. Muslim personal law only applies if expressly stated by statute

With the existence of AMLA, statutes will contain express provisions exempting Muslims. Chan CJ held that in absence of such provisions in the LTA and LTSA, these statutes would apply to Muslims.¹⁷ Therefore, all rules governing property ownership in general law, including the rights of survivorship in a joint tenancy, would prevail over faraid rules in Singapore.

ii. Fatwas are not binding on the courts

This is further supplemented by the assertion in Shafeeg that any fatwa issued by MUIS has no binding effect on courts. On this issue, Chan CJ followed the decision in an earlier High Court case, Saniah bte Ali v Abdullah bin Ali [Saniah],¹⁸ where LP Thean J (as he then was) opined that “the fatwa is merely an opinion of the Majlis and is not binding on this court which has full jurisdiction to decide on the matter in issue. What is before me is not really a point of Muslim law on which the Majlis is empowered under s 32 to issue the fatwa.”¹⁹ On this reasoning, Thean J rejected a prior MUIS fatwa²⁰ and held that a statutory trust created by the CPF Act prevailed over the application of Muslim law to the fund in question.

Chan CJ in Shafeeg also explained that the MUIS fatwa cannot be binding especially in Saniah and Shafeeg because they were not obtained by the court, but by request of the private parties themselves. As such, they “will not ordinarily have the same standing”.²¹ It was acknowledged that there was a likelihood of these parties “framing a question based on assumed or hypothetical facts” in a way that misled MUIS, with the result that fatwas were irrelevant or inconsistent with existing law.²² All these re-emphasise the status of MUIS fatwas as nothing more than expert opinion which can be rejected if deemed irrelevant by the court.

CONCLUSION

It is now clear that Muslim law in Singapore applies only insofar as statutes allow it and MUIS’ fatwas are merely non-binding opinions. With regard to joint tenancy, the LTA, LTSA and other statutes concerning land law will continue to apply to Muslims and non-Muslims alike.

However, it is also important to recognise that the conflict between faraid and general law will arise only when succession is contested in the courts. Only then will the supremacy of general law be asserted, as in the decision in Shafeeg. When the beneficiaries and inheritors of an estate accept their standing and entitlements under faraid or the ‘alternative arrangements or agreements’ as specified by the MUIS fatwa, such a conflict will not arise at all. In Shafeeg, it was the estate of a Muslim joint tenant who brought the case to court.

In common inheritance disputes involving assets like CPF money and property, where statutes governing them do not make express exceptions for Muslims, the courts can now take Shafeeg as locus classicus. In fact, the holding in Shafeeg is a clear and helpful guide from the Court of Appeal for legal practitioners in advising their Muslim clients on Muslim personal law. It is also hoped that this would result in greater care and thought being put into estate planning as well as the purchase of matrimonial property as joint tenants.

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[1] (Cap 3, 2009 Rev Ed Sing).

[2] Parliamentary Debates Singapore: Official Report, vol 25 at col 245 (17 August 1966).

[3] Black’s Law Dictionary, 10th ed, sub verbo “personal law”.

[4] AMLA, s 3.

[5] AMLA, s 32(1).

[6] AMLA, s 32(6).

[7] AMLA, s 32(3).

[8] AMLA, s 112(1). See generally.  MB Hooker, Readings in Malay Adat Laws (Singapore: Singapore University Press, 1970). See also Nellie SL Tan–Wong & Vipin Patel, Adat Perpatih: a Matrilineal System in Negeri Sembilan, Malaysia and Other Matrilineal Kinship Systems Throughout the World (Malaysia: Wintrac Sdn Bhd, Malaysian Affiliate, Women's World Banking, 1992).

[9] Majlis Ugama Islam Singapura, “Fatwa on the Joint Tenancy”, Office of the Mufti, online: <http://www.officeofthemufti.sg/Fatwa/joint-tenancy(2008).html>.

[10] [2010] SGCA 11, [2010] 2 SLR 1123 at [23].

[11] Wan Noraini Mohd Salim, Islamic Law of Succession: A Practical Guide To The Laws of Faraid (Selangor, Malaysia: CLJ Publication, 2012) at 7, 53-133.

[12] Kevin Gray & Susan Francis Gray, eds, Elements of Land Law, 5th ed (Oxford: Oxford University Press, 2009) at 919.

[13] John Baalman, The Singapore Torrens System (Being a Commentary of the Land Titles Ordinance, 1956 of the State of Singapore) (The Government of the State of Singapore, 1961) at 191.

[14] (Cap 157, 2004 Rev Ed Sing).

[15] (Cap 158, 2009 Rev Ed Sing).

[16] Supra note 10 at [22].

[17] Supra note 10 at [44].

[18] [1990] SGHC 40, [1990] 1 SLR(R) 555.

[19] Ibid at [17].

[20] This fatwa was issued by MUIS in 1990 to clarify that under faraid, CPF moneys belong to the estate of the deceased CPF member.

[21] Supra note 10 at [65].

[22] Supra note 10 at [64]-[65].

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Considering Constructing Vulnerabilities in the Vulnerable Adults Act

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Considering Constructing Vulnerabilities in the Vulnerable Adults Act

Goh Hui Si Priscilla

Announced in January 2015, the Vulnerable Adults Act [the Act] is slated for possible implementation within the year. The purpose of the Act is to legislate for the provision and protection of “vulnerable adults” deemed unable to take care of themselves, particularly in cases of self-harm and neglect. While the Act is still in relatively early stages of development, there are a few possible issues to consider that straddle both legal and policymaking spheres. This article addresses two major issues – terminology and contextual applicability – that the author finds must be sufficiently addressed in order for the Act to function effectively in Singapore’s increasingly ageing society.

The first issue is how a “vulnerable adult” should be defined. The most straightforward element to consider would be the person’s mental state. Where an individual is rendered mentally incapable of looking after himself, his impaired decision-making abilities create a possible area of weakness wherein his actions cause harm to his health, physical self, or both. Consequently, the Act would effectively serve to protect the individual from himself during the period of impairment by, inter alia, providing appropriate social work or medical institutions with easier access to this individual. This relatively straightforward scenario complements the provisions of the Mental Capacity Act [MCA]¹ by providing an alternate legal pathway for family members or relatives to step in and make decisions on behalf of mentally incapacitated individuals.

The difficulty arises, however, where an individual is not mentally incapable of looking after himself, but is still deemed to be a “vulnerable adult” under the Act. This particular concern is raised in light of then Minister for Social and Family Development Chan Chun Sing’s speech during the introduction of the Act, where he pointed out that individuals who are not mentally incapable but undergo lack of care from their families or neglect may nevertheless fall within the Act’s purview.²

The present legal position per s 3(2) read with s (6) of the MCA is that individuals retain the freedom to choose whether or not to receive medical care, unless they are mentally incapable of making decisions in their best interest. In such exceptional situations, a legally appointed donee would make decisions relating to his life to promote the individual’s personal welfare.³ Consequently, the Act’s prerogative to legislate the intervention of an individual who is not mentally incapable of making decisions related to his life begs the question of what other factors can be so determinative as to override an individual’s validly held mental capacity to make his or her own life choices. Despite the Act’s focus on protecting individuals from their own actions, a possible factor is, ironically, the individual’s own choices and actions. There is then a need for the relevant stakeholders in the legislation to consider what actions would be so detrimental to an individual so as to necessitate overriding his freedom to choose his own actions in the course of his life, especially when he is in fact mentally capable of choosing so.

The mix of contributing factors to the definitions within the Act is ultimately an extremely pertinent matter affecting the boundaries of the Act. Such boundaries must be narrow enough to ensure distinct identification of an individual considered to be vulnerable, but wide enough such that it reaches individuals who are on the margins of the targeted class of individuals. This aspect is particular crucial not just for the effectiveness of the Act itself, but to prevent social stigma from the mischaracterization of individuals eventually affected by the implementation of the Act.

An additional issue to consider is the function of the Act as part of the Ministry of Social and Family Development’s three-pronged approach towards reaching out to this targeted class of individuals. In his speech, the then-Minister strongly emphasised that the Act is to be used as a last resort, with the primary twin foci being on building family support for such individuals and strengthening community and social service support. It is evident that the Act developed as a safety net meant for cases that fall through the cracks of the twin foci. This has a significant impact on the Act’s scope. The tension lies between the need for legislation that covers a broad enough range of factual matrices in order to function as an effective legal safety net to catch cases requiring state intervention, and the need for legislation with narrow enough definitions that draw effectively enforceable boundaries.

The principal motivations behind the Act make discussion of its substance a particularly timely one in light of Singapore’s ageing population. However, given the conspicuous difficulties that legislators and drafters will face in crafting the Act, it is worth pondering if the Act suffices as a solution to the increasingly prevalent issues of self-harm and neglect, or if the relevant institutions should look towards improving present legislation to resolve these issues instead.

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[1] Cap 177A, 2010 Rev Ed Sing

[2] Chan Chun Sing, Speech at MSF Committee of Supply 2015, online: Ministry of Social and Family Development <http://app.msf.gov.sg/Press-Room/Speech-at-MSF-Committee-of-Supply-Debate-2015>.

[3] Wong Meng Cheong and Ling Ai Wah and another, [2012] 1 SLR 549, [2011] SGHC 233 at [108]).

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Law, Justice, Truth, and Forgiveness? A Case Study of South Africa

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Law, Justice, Truth and Forgiveness? A Case Study of South Africa

Nguyen Vu Lan

Established in December 1995 in South Africa, the post-apartheid Truth and Reconciliation Committee (TRC) has received both praise and criticism from many legal, historical, philosophical, and political viewpoints. One of the most contentious issues about the TRC is its conditional amnesty provision¹ for the perpetrators of wrongs under the apartheid, which provided amnesty on the condition that they come forward and tell the truth about what they did. Normally, one of the most common (and significant) goals of criminal law is to mete out retributive justice, punishing the offenders for the wrongs they have done. However, the conditional amnesty provision, premised on the concepts of truth and forgiveness, turned this notion on its head and pursued restorative justice instead. After all, laws are enacted for the good of the nation and the society, and here was one instance where the normal rule of law was bent to, presumably, serve the greater good of the “reconciliation” of the nation. But is the route of restorative justice really the best way to achieve national reconciliation, or would retributive justice have done a better job? This essay seeks to argue that firstly, the route of restorative justice embodied in the conditional amnesty provision was theoretically the best option in light of this aim of reconciliation, and secondly, despite many flaws, the TRC did achieve a somewhat modest reconciliation of the nation.

Truth, Forgiveness, Justice and Reconciliation

The TRC is unique in that it directly linked truth to exoneration from responsibility. Amnesty was promised to individuals guilty of politically motivated “gross violation of human rights”² who told the whole truth about what they did. From a legal perspective, this intimate link inevitably raises questions about contentious concepts like truth, forgiveness, and justice. With the over-arching goal of national reconciliation in mind, this paper argues that the route of truth and forgiveness was theoretically better than prosecution and retributive justice.

According to Asmal et al,³ reconciliation is the “ending of the divisive cycle of accusation, denial and counter-accusation; not a forgetting of these accusations and counter-accusations, but more a settling of them through a process of evaluation”.⁴

One very important criticism against the TRC is that justice should be a pre-requisite of reconciliation, and not an alternative to it.⁵ This is the popular view in many legal systems. However, this depends on how we define “justice”. Normally, we tend to associate “justice” with “retributive justice” – the idea that justice requires the criminal to be punished proportionately to the crime he/she has done.⁶ Many families who had lived through the apartheid system opposed the TRC precisely because it was not meant to mete out retributive justice.

However, the TRC may well be in right in disassociating justice with retribution. One limit of retributive justice is that it may never be enough. Punishing the apartheid perpetrators cannot bring the victims back, and because of the lack of the death penalty in South Africa, the punishments would never be proportionate to the crimes (many of which were murder). Furthermore, there is always the risk of families of victims taking retributive justice into their own hands if they remain unsatisfied with the punishment meted out by the state. Reconciliation with the past would then be all the more difficult.

Another issue with retributive justice is that in the apartheid conflict where there were human rights abuses on all sides, it was difficult to assign blame and thus punishment to an individual. To quote Miriam Aukerman,⁷ “the central premise of individual responsibility portrays defendants as separate people capable of autonomous choice—when the phenomena of mass atrocities render that assumption at best problematic”. Many perpetrators of violence might have believed that they were acting for a just cause – and this was true for both pro-apartheid and anti-apartheid perpetrators. Although this does not mean that their actions were justified, it does show that retributive justice in this case might be too rigid an option. It might even cause uproars and protests from both sides, which would severely damage the reconciliation efforts.

Perhaps the TRC process was exploring justice in a more magnanimous form with reconciliation in mind – restorative justice, which “points beyond conventional retribution into a realm where justice and mercy coalesce”.⁸ This is a concept not too often acknowledged in traditional courts of law, but it should be looked at in the context of a freshly wounded nation wanting to start over. This restorative justice was supposed to be brought about by truth and forgiveness. When the victim forgives the perpetrator, the two can reconcile and move on together. Archbishop Desmond Tutu, chairman of the TRC, emphasized the concept of Ubuntu,⁹ and called for forgiveness, which would lead to peace and reconciliation. This forgiveness can only be brought about by truth. On a more symbolic level, because the apartheid system was founded on a lie (that blacks were inferior to whites), a truth commission would signify the dawn of a new day. Truth hurts but it also heals, and knowing what happened to their family members might bring a sense of closure to the victims. As Benedict Anderson argues, “The formulation of a shared national past is simultaneously the basis of the assertion of a shared national future.”¹⁰ With truth comes understanding, and with understanding comes peace and hope for a new future. Reconciliation would then be achieved, because both sides in the apartheid conflict would be able to move on with their lives, having understood and hopefully made peace with their past.

Evaluation of the Amnesty Provision

While the idea behind the TRC has been argued to be the best option for national reconciliation, in reality the TRC did not achieve its ideal completely. There were many flaws that meant that the TRC came rather short of what it wanted to achieve. However, overall, it did lead to some kind of modest national reconciliation.

One flaw of the TRC is that it had a very narrow focus. The amnesty is only provided for those who committed “gross violation of human rights”. This results in the perpetrators – more of the “trigger-pullers” rather than the political masterminds – having to bear the collective shame of the apartheid system. At the same time, the TRC also allowed those who committed wrongful acts under the apartheid that affected others socially and economically to get away. This ignores the various ways in which the apartheid system damaged human rights and human dignity, and even allows whites who did not commit murderous acts (but who discriminated blacks in other ways, and otherwise benefited from the apartheid system) to think of themselves as morally untainted by apartheid. This could be seen as a grave failure of the legal system, as certain wrongs went unpunished and moreover even “tolerated” or “glossed over”.

More importantly, the narrow focus meant that the TRC’s goal of documenting a collective history – by collecting “truths” from the perpetrators of violence – fell short. According to Piers, there was much disagreement over whether the whole truth had been told or not.¹¹ The apartheid system was not just about physical violation of human rights; it was also about political, social and economic discrimination, and “truth” cannot be attained without these missing pieces. For instance, no senior member of any political party – the “masterminds” – came forward and told their versions of the truth. For those who did apply for amnesty, there was doubt that they only told the version that would fulfil the amnesty requirements.

This partial failure to collect truth made forgiveness and closure difficult. Many victims left the process feeling more bitter and frustrated because they felt that the perpetrators did not provide the whole truth of their accounts, and yet received amnesty. Oftentimes, the opposite of closure happened. For example, Sylvia Dlomo-Jele, the mother of murdered activist Sicelo Dlomo, believed that the perpetrators of her son’s murder disclosed the truths selectively to fulfil the amnesty requirements. She refused to forgive, as did many families who believed that the perpetrators had told half-truths.¹² Coupled with the fact that there was little or no follow-up investigation of the perpetrators’ accounts, there was a justifiable feeling that TRC was not living up to its promises.

The lack of a requirement for remorse also made the goal of forgiveness difficult sometimes. When victims met perpetrators and the perpetrators showed no repentance, the victims had to re-live the horrors of the past again without anything to comfort them. Admittedly, there were valid reasons why remorse was not required, because it would have deterred many people or forced people to put on a façade, thus impeding the goal of acquiring truth. Also, if it did, it would have devalued the moments when genuine remorse was present. To quote Peter Storey:¹³

In one case, a police officer who masterminded the butchering of a number of families in an attack on a rural village faced his victims: “I can never undo what I have done,” he said. “I have no right to ask your forgiveness, but I ask that you will allow me to spend my life helping you to rebuild your village and put your lives together.” In such moments, anger at the unrepentant is superseded by a glimpse of something more. Out of the horrors of the past, the TRC makes space for grace, and the potential for newness in South Africa shines through.

There were other weaknesses of the TRC as well. One of them is the fact that very few cases that were rejected for amnesty were actually followed up in criminal or civil courts. Effectively, there was not much difference between those who did receive amnesty (i.e. those who had to go through all the public hearings and spectacles), and those who did not (i.e. common criminals). This, again, shows a defect in the implementation, if not the substance, of the amnesty provision.

However, there were indeed things that the TRC did well. One of them is the fact that the TRC did not discriminate between black and white perpetrators – both sides committed acts that violated human rights. Justice and the law should be impartial, and in this respect, they were. The commission considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress. Some have decried this as a failure to make a moral distinction between one side which fought for equality and one side which were the oppressors, but such criticism treads dangerously close to the realm of victor’s justice. Indeed, this aspect of the TRC went far in the goal of reconciliation precisely because it acknowledged the fact that both sides did play a part in the brokenness of the nation, and this very acknowledgement was necessary for both sides to move on. It also sent out the important message that a morally justified struggle does not justify immoral and indiscriminate violence, which will remind the nation not to repeat its history.

Another more fundamental requirement was that the amnesty was conditional upon the perpetrators telling the truth. People were made to realize that their tormentors do not just get away freely – that “there is a difference between impunity, implying escape from accountability, and amnesty, which carries profound inward and social consequences”.¹⁴ These perpetrators will have to bear the shame for the rest of their lives, and will have to face their families, their friends, their communities with a black mark. The shame and the social disgrace may be nothing compared to what they did, but perhaps it was enough to restore the nation – not as harsh as retributive justice, but not too lenient either.

For the few perpetrators who truly felt remorseful, the TRC helped in reconciliation in another way: it somewhat cleansed their conscience. At least they came forward, told the truth, and perhaps had the chance to apologise to the victims. Some will live with shame for the rest of their lives, but some will live with grace, not letting their past define them and being able to move forward after “purging” their guilty conscience.

Conclusion

With all the flaws and strengths of the TRC, whether it has achieved its goal of national reconciliation is still debatable. However, with all the public hearings and media surrounding the TRC, perhaps it is fair to say that TRC has achieved its goal to a moderate extent. Many accounts of the truth have been provided in the TRC Report in 1997, allowing many to move on with their lives. This is an interesting instance where the law, by meting out restorative justice instead of retributive justice, might have achieved the greater good. Of course, there is no easy answer to the issue of whether restorative or retributive justice is better in the grand scheme of things, because truth and justice and reconciliation are rather intangible concepts that cannot be easily measured or seen. South Africa is an interesting case study for this question, but it leaves us with more questions than answers, and only time will tell what kind of justice or “mixture” of kinds of justice is required of the legal system in such a scenario.

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[1] Promotion of National Unity and Reconciliation Act, No 34 of 1995, Cap 4.

[2] Promotion of National Unity and Reconciliation Act, No 34 of 1995, s 1(1).

[3] Kader Asmal, Louise Asmal, Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance, (Cape Town: David Philip Publishers, 1996), 46.

[4] Emphasis by author.

[5] Peter Storey, “A Different Kind of Justice: Truth and Reconciliation in South Africa” (1997) The Christian Century. 

[6] Antony Duff, “Legal Punishment” (2003) The Stanford Encyclopedia of Philosophy.

[7] Aukerman Miriam J., “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice” (2002) 15 Harvard Human Rights Journal 39-97.

[8] Supra note 5.

[9] “A person with Ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good, based from a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.” (Tutu, Desmond, No Future Without Forgiveness (1999)).

[10] Wilson Richard A., “The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State” (Cambridge: Cambridge University Press, 2001).

[11] Piers Pigou, “False Promises and Wasted Opportunities? Inside South Africa’s Truth and Reconciliation Commission” in Deborah Posel & Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (Johannesburg: Witwatersrand University Press, 2002), 37.

[12] Ibid.

[13] Supra note 5.

[14] Supra note 5. 

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