New Sentencing Principles for Rape – An Analysis of Ng Kean Meng Terence v Public Prosecutor

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New Sentencing Principles for Rape – An Analysis of Ng Kean Meng Terence v Public Prosecutor

Benjamin Low

I. INTRODUCTION

What is the most appropriate sentence that should be meted out onto an accused person who has been found guilty of the offence of rape?

The apparent simplicity of this question belies powerful, and oftentimes conflicting, sentencing policy considerations and more abstract questions of ethical principles and sentencing theory. The recent case of Ng Kean Meng Terence v Public Prosecutor¹ [Ng Kean Meng Terence] is the Singapore Court of Appeal’s latest attempt at creating a new, comprehensive sentencing framework for rape in order to address the above quandaries. This article seeks to analyse the state of the law prior to Ng Kean Meng Terence and discusses the implications and effects of the case on the criminal law.

II. BACKGROUND

Prior to Ng Kean Meng Terence, the law on sentencing for rape offences was encapsulated in Public Prosecutor v NF² [NF]. In NF, V K Rajah J (as he then was), formulated a new sentencing framework (the “NF Framework”) that was meant to replace the earlier sentencing guidelines in the earlier case of Chia Kim Heng Frederick v Public Prosecutor³ [Frederick Chia].

Under the NF Framework, rape cases were divided into four categories, each with a minimum sentence of imprisonment and caning of differing degree.⁴ The NF Framework may be briefly summarised as follows:

1. Category 1 – Cases with no aggravating and/or mitigating factors with a starting sentence of ten years imprisonment and not less than six strokes of caning.
2. Category 2 – Cases with any one of the seven aggravating factors listed in NF, such as where rape that is committed by two or more persons acting in concert; or where the offender is in a position of responsibility towards the victim.⁵ For such instances, the starting sentence would have been fifteen years imprisonment and twelve strokes of the cane.
3. Category 3 – Cases where the victim is raped on multiple occasions, or where rape is perpetrated on multiple victims. This category shares the same sentencing benchmark as a Category 2 case. Rajah J justified this on the basis that the Prosecution would normally prefer multiple charges against the offender, thereby leading the courts to order that two or more of the sentences imposed run consecutively, thereby resulting in a higher sentence meted out.⁶
4. Category 4 – Cases where the offender has “manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time”.⁷ In such cases, the maximum sentence of twenty years imprisonment and twenty-four strokes of the cane would be handed out.

Ideally, the NF Framework operates by having the Court first determine the category under which the particular rape offence should be placed, followed by the Court then adjusting the benchmark sentence upwards or downwards to take into account the additional aggravating and mitigating factors disclosed on the facts.⁸

The NF Framework was first considered and approved of by the Court of Appeal in the context of rape simpliciter in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik.⁹ It was subsequently applied by the Singapore courts to a wide range of cases involving rape committed in various permutations and factual situations.¹⁰

III. PROBLEMS WITH THE NF FRAMEWORK

Notwithstanding the durability and versatility of the NF Framework over the past eleven years, the Court of Appeal in Ng Kean Meng Terence noted that problems remained with the NF Framework that, in its opinion, necessitated a revision of the sentencing law on rape. These were, firstly, that the categories laid down in NF were themselves not properly defined – to the extent that some of the categories served no clear purpose.¹¹ Category 3, for example, was defined in NF as encompassing cases involving the repeated rape of the same victim or rapes committed by a single offender on multiple victims. However, given that the Criminal Procedure Code¹² requires that (and tying in with longstanding prosecutorial practice) separate and multiple charges be pressed against an accused person based on the facts disclosed¹³ and separate sentences imposed for each charge which the accused person is convicted of,¹⁴ this appeared to remove the need for a separate Category 3 to deal with multiple offending under the NF Framework.

A second, more pressing problem, was the lack of conceptual coherence with which the Category 2 aggravating factors were included inside Category 2. While it is not possible to list out all the Category 2 aggravating factors here, the Court of Appeal noted with disquiet that “[T]here does not appear to be any conceptual unity or discernible unifying theme”¹⁵ underlying the inclusion of these factors and the exclusion of others. While Rajah J no doubt intended that the list of Category 2 aggravating factors themselves be complemented with the additional aggravating factors and/or mitigating factors of each specific case, there is considerable weight in the Court’s criticisms with regards to the admittedly unclear criteria on which the Category 2 aggravating factors were based on.

The final nail in the coffin was the Court of Appeal’s finding that the NF Framework did not properly account for the statutory aggravating factors already present in the Penal Code. Section 375(3) of the Penal Code¹⁶ provides for a minimum sentence of 8 years imprisonment and 12 strokes of the cane if an offender either (a) voluntarily causes hurt to a victim or any other person in order to commit or facilitate the commission of rape; (b) puts the victim in fear of death or hurt to herself or any other person in order to commit or facilitate the commission of rape; or (c) rapes a victim under 14 by having sexual intercourse with her without her consent. None of these factors are included in the Category 2 aggravating factors within the NF Framework. In the Court’s opinion, there was a need to clarify the relationship between the two groups of aggravating factors.

IV. THE NG KEAN MENG TERENCE SENTENCING FRAMEWORK

Having opted to do away with the NF Framework, the Court in Ng Kean Meng Terence embarked on the difficult task of developing a new sentencing framework (the “Ng Kean Meng Terence Framework”) for the offence of rape. After considering past approaches by the courts in the preceding case law, the Court of Appeal rejected these approaches as unsuitable and opted to adopt the framework developed in the New Zealand case of R v Taueki.¹⁷

Generally speaking, the Ng Kean Meng Terence Framework operates in two steps:¹⁸

1. Firstly, the court should identify which sentencing band the offence in question falls within by taking into account the offence-specific factors in the case. Once the sentencing band has been identified, the Court should then determine where within the aforementioned band the present offence falls in order to derive a sentence for a starting point.
2. Secondly, the court should then consider the aggravating and mitigating factors which are personal to the offender to calibrate the appropriate sentence for the offender.

Step 1. Classification of the Offence

The Court of Appeal stressed that only “offence-specific” factors which relate to the circumstances of the offence such as the particular harm caused, the manner in which the offence was committed, or the specific role played by the offender in the commission of a offence by a group.¹⁹ This proposition is a common-sensical one that recognises that different factual permutations of rape should attract different penal consequences.

A non-exhaustive list of offence-specific factors, drawing on existing case law, was proposed by the Court:²⁰

• Group Rape: Offences committed by groups of persons.
• Abuse of position and breach of trust: Where the offender is in a position of responsibility towards the victim or in whom the victim has placed her trust by virtue of his office of employment.
• Premeditation: Where the offender engages in some form of planning or exhibits premeditation in committing the act (e.g. through the use of drugs or engaging in predatory behaviour).
• Violence: Actual or threatened use of violence.
• Vulnerable victim: Whether the victim was especially vulnerable by reason of age, physical frailty, mental impairment or disorder, and/or learning disability.
• Forcible rape of a victim below the age of fourteen.
• Hate crime: Where the offence was committed as a hate crime, such as an expression of racial and/or religious prejudice, or in other situations where the victim has been specifically targeted by reason of her membership of a vulnerable minority group.
• Severe harm: Severe harm inflicted on the victim such as pregnancy, transmission of a serious disease or a psychiatric illness.
• Deliberate infliction of special trauma.

The Court of Appeal also cautioned against taking into account the two factors of (i) forgiveness by the victim towards the offender and (ii) consent given by a victim under fourteen on the basis that such factors were usually irrelevant.²¹ Rejecting the second factor in particular, ties in with the express wording of s 375 of the Penal Code in criminalising sex with a person under the age of fourteen.

Having regard to the offence-specific factors, the Court must then place the offence within an appropriate sentencing band.²² For ease of reference, the three sentencing bands, each with different sentencing outcomes, are laid out below:

Once the appropriate sentencing band has been identified, the Court would then identify where precisely along the range prescribed for the band a particular sentence falls.²⁴

Step 2. Calibrating the Sentence

Once the starting-point sentence has been identified, the Court must then consider the “offender-specific” factors of the case – that is to say, those factors which relate to the personal circumstances of the offender himself,²⁵ rather than relating to the manner and mode of the offending. In making this distinction, it seems that the Court of Appeal was clearly seeking to prevent any double-counting of factors that could lead to an imposition of more severe sentences than would usually be the case.

The possible offender-specific aggravating and mitigating factors recognised in Ng Kean Meng Terence are as follows:²⁶

One of the more controversial aspects of Ng Kean Meng Terence was whether pleas of guilt could constitute a mitigating factor. While this contentious point will be discussed in further detail below, it will suffice to say that the Court in Ng Kean Meng Terence was prepared to treat pleas of guilt as one of the many offender-specific mitigating factors.²⁷

V. COMMENTARY

From the outset, it should be noted that the Ng Kean Meng Terence Framework does not constitute a fundamental or radical revision of the sentencing law for rape. What the Ng Kean Meng Terence Framework does is to improve the present sentencing framework by better delineating the different factors that courts usually consider when determining the appropriate sentence to be meted out onto the offender.

Thus the distinction between “offence-specific” and “offender-specific” factors removes the problem of double-counting while ensuring that all relevant factors in each case are taken into consideration by the courts.²⁸ The offence-specific factors themselves have also been modified to circumvent the conceptual difficulties of the NF Framework while addressing the third problem raised as to the statutory-aggravating factors in the Penal Code.²⁹

A second noteworthy point is the use of sentencing bands which injects greater clarity in determining the starting-point sentence. Rather than having to work from scratch at a fixed benchmark sentence under the NF Framework, sentencing courts can now better identify which Band, and thus which part of the Band, the case in question belongs to.

It bears mentioning that since the decision of Ng Kean Meng Terence, there have been some additional developments in the local case law with regards to the Ng Kean Meng Terence Framework. While it is not possible to consider these developments in great detail, they warrant a mention in this article for completeness sake. In the later decision of Pram Nair v Public Prosecutor,³⁰ the Court of Appeal recognised that the intoxication of a victim could constitute an additional offence-specific aggravating factor though it cautioned that this factor would not necessarily manifest itself in all cases involving an intoxicated victim.³¹ Much would depend on the degree of intoxication in each particular case. More importantly, the Ng Kean Meng Terence Framework was transposed onto the offence of sexual assault by penetration, with three sentencing bands imposed with varying sentencing ranges.³² As a preliminary note, these developments ought to be welcomed as promoting unity in the courts’ approaches towards both types of sexual offences.

However, notwithstanding the merits of the Ng Kean Meng Terence Framework, it is submitted that the shift in the Court of Appeal’s attitude towards pleas of guilt could carry possibly adverse implications in the sentencing law towards criminal offences. Prior to Ng Kean Meng Terence, it was settled law that a plea of guilt would not entitle an offender to a sentencing discount unless it was made out of genuine remorse.³³ However, the Court of Appeal has since departed from that position by recognising in Chang Kar Meng v Public Prosecutor³⁴ [Chang Kar Meng] that a plea of guilt could constitute a mitigating factor for utilitarian reasons (i.e. it saves victims the horror of having to recount the ordeal and it saves the resources of the State if the case were to go to trial) besides the existing remorse-based justification. The Court galvanized this proposition in Ng Kean Meng Terence by citing Chang Kar Meng with approval.³⁵

While the utilitarian considerations admittedly cannot be discounted, the Court of Appeal’s pronouncement in Ng Kean Meng Terence has the effect of suggesting that a plea of guilt will almost certainly entitle an offender to a sentencing discount as long as he pleads guilty to a charge of rape, even if the guilty plea was not motivated by genuine remorse or contrition. Though the Court later sought to clarify that guilty pleas would only be treated as one of the many mitigating factors, it is not difficult to foresee that rape offenders would be more inclined to try their luck and enter pleas of guilt in the hopes of obtaining a lighter sentence. In a Band 1 case of rape with no further aggravating factors, a plea of guilt could potentially entitle an offender to a sentence beneath the lowest threshold in Band 1. In such situations, and where the offender does not seem to have displayed genuine remorse, can it truly be said that the public interest has been effectively safeguarded or that the overriding considerations of rehabilitation and/or deterrence have been achieved?

This leads us to a more fundamental problem with the Ng Kean Meng Terence Framework in that it does not provide any real change in the sentencing law for rape. While this was no doubt the express intention of the Court of Appeal itself,³⁶ one cannot help but feel that a golden opportunity was missed in reviewing the present sentencing law on rape and then determining whether or not the prescribed sentencing ranges ought to be revised upwards or downwards. Indeed, the lowest sentence of ten years imprisonment and six strokes of caning in Band 1 was clearly based on the earlier decision in Frederick Chia³⁷ but this writer submits that the sentencing ranges for the various sentencing bands should be revised upwards. A stricter sentencing regime would better accord with the longstanding deterrent aspect of the sentencing jurisprudence of the Singapore courts,³⁸ especially given a disturbing rise in sexual crimes over the past few years.³⁹

VI. CONCLUSION

The process of determining and laying down suitable and comprehensive sentencing guidelines for various offences is a continuous and challenging effort that often requires the courts to continuously take into account broader societal and legal changes in an effort to ensure that such guidelines remain relevant and up-to-date while ensuring that the public interest is safeguarded. Since the NF Framework, the criminal law in Singapore has evolved immensely, and the Courts must continue to refine and redevelop the existing case law to account for the new legal climate.

In light of the intrinsic seriousness of the offence of rape in particular, and the difficulties that courts sometimes encounter in threshing out the most appropriate sentence, the Court of Appeal has boldly decided to revise the sentencing law for rape by devising a new sentencing framework that meets these requirements. Although it remains to be seen whether the Ng Khean Meng Terence framework is sufficiently capable of withstanding future challenges in the form of hard cases, there is much to commend the Court for its efforts in tackling what has been a most complex area of criminal law.

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[1] [2017] 2 SLR 449.

[2] [2006] 4 SLR(R) 849.

[3] [1992] 1 SLR(R) 63.

[4] Supra note 2 at [20]–[21].

[5] Ibid.

[6] Ibid, at [37].

[7] Ibid, at [21]; see also R v Keith Billam (1986) 8 Cr App R (S) 48 at pp 50–51.

[8] Ibid, at [23]; see also Ng Kean Meng Terence at [10].

[9] [2008] 1 SLR(R) 601.

[10] See PP v UI [2008] 4 SLR(R) 500 and PP v AOM [2011] 2 SLR 1057.

[11] Supra note 1 at [13]–[15].

[12] (Cap 68, 2012 Rev Ed).

[13] Ibid, at s 132.

[14] Ibid, at s 306(1).

[15] Supra note 1 at [17].

[16] (Cap 224, 2008 Rev Ed).

[17] [2005] 3 NZLR 372.

[18] Supra note 1 at [39].

[19] Ibid, at [43].

[20] Ibid, at [44].

[21] Ibid, at [45].

[22] Supra note 1 at [47].

[23] See PP v Bala Kuppusamy [2009] SGHC 97 at [28]–[29].

[24] Supra note 1 at [61].

[25] Ibid, at [62].

[26] Ibid, at [64]–[65].

[27] Ibid, at [71].

[28] Ibid, at [73].

[29] Supra note 16 at s 375(3).

[30] [2017] 2 SLR 1015.

[31]Ibid, at [126]–[132].

[32] Ibid, at [158]–[159]; although, strangely, the Court held that the respective sentencing ranges for sexual assault by penetration were to be lower than that for rape.

[33] Supra note 1 at [67]; see also Rajah J’s holding in Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [56] and [77].

[34] [2017] 2 SLR 68 at [47].

[35] Supra note 1 at [68]–[69]; see also Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 at [20].

[36] Ibid, at [74].

[37] Supra note 3 at [20].

[38] See PP v Law Aik Meng [2007] 2 SLR(R) 814 at [18]–[19].

[39] Seow Bei Yi, “Rise in sex crimes over past 5 years: State Courts”, The Straits Times (3 April 2017), online: <http://www.straitstimes.com/singapore/courts-crime/rise-in-sex-crimes-over-past-5-years-state-courts> ; see also “Violence: Rape Victims” (24 February 2017), online: Ministry of Social and Family Development <https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Violence-Rape-Victims.aspx> .

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The Use of Force Against Non-State Actors: Justifying and Delimiting the Exercise of the Right of Self-Defence

The PDF version of this article is available for download here.

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The Use of Force Against Non-State Actors: Justifying and Delimiting the Exercise of the Right of Self-Defence

This article was kindly contributed by Ms. Wee Yen Jean, who is presently pursuing her third and final year for her Bachelors' in Law at the University of Cambridge. The Editors would like to thank her for her submission to Juris Illuminae's ninth volume.

I. INTRODUCTION

Traditionally conceived of as primarily governing inter-state relations, international legal frameworks have often struggled to accommodate non-state actors. This has posed significant challenges for the regulation of the use of force. In recent times, technological and military advancements have greatly increased the destructive potential of non-state actors,¹ and “terrorist cells are unfortunately omnipresent in today’s world”.² This necessitates a re-evaluation of the efficacy of a state-centric model in guiding the international community’s response, especially as the emergence of the Islamic State (“ISIS”) as a “global and unprecedented threat to international peace and security”³ has revived important debates about the scope and limits of the right of self-defence as a justification for the use of force by states in response to attacks by non-state actors.

Focusing on the right of individual self-defence (which is that exercised by the victim state against the aggressor), this article will first outline the status of non-state actors in this area of international law, particularly since the 9/11 terrorist attacks. Next, it will observe that the use of force by victim states in self-defence against non-state actors has been increasingly accepted, but that an additional and defensible legal basis must be found to justify the use of force within the territory of a non-consenting host state (the state from which the non-state actors are operating) in violation of its territorial sovereignty. It is submitted that, as Tsagourias⁴ and Paddeu⁵ have suggested, conceiving of self-defence as a circumstance precluding wrongfulness currently provides the neatest solution to the problem. The article will conclude by briefly considering the implications of adopting such an approach, in particular on the scope and limits of the right of collective self-defence (that invoked by third states coming to the victim state’s aid), which as yet remain unclear.

II. SELF-DEFENCE AGAINST NON-STATE ACTORS

The use of force by states is prohibited by Article 2(4) of the United Nations Charter, and this prohibition is widely regarded to be jus cogens. The main exception to this prohibition is the “inherent right of individual or collective self-defence” against an “armed attack” recognised by Article 51 of the Charter, the scope of which is (unsurprisingly) highly contentious. While the formal legal position is that the right of self-defence can only be invoked against an aggressor state, “[t]he claim that international law absolutely prohibits defensive force against non-[s]tate actors is losing legal traction” and is “increasingly difficult to sustain”.⁶ The right of self-defence against non-state actors has been increasingly invoked and accepted in state practice,⁷ even if its lawfulness has not yet been clearly established. This section will trace that development.

The International Court of Justice (“ICJ”) has maintained in its jurisprudence that an element of state involvement is required in order for a group to be considered to have launched an “armed attack”, thereby ruling out the invocation of self-defence against truly “non-state” actors. In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)⁸ [Nicaragua], the ICJ relied on Article 3(g) of the 1974 Resolution on the Definition of Aggression,⁹ and held that the definition of “armed attack” could extend to cover attacks by “armed bands, groups, irregulars, or mercenaries”, but these actors must have been sent “by or on behalf of a State”.¹⁰ Even after 9/11, the ICJ maintained that self-defence could only be invoked in response to an armed attack “by one State against another State” in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory¹¹ [Wall].

However, this orthodox view has come under increasing strain in light of state practice since 2001, when the United Nations Security Council Resolutions 1368¹² and 1373¹³ implicitly recognised the United States’ right of self-defence in response to the 9/11 attacks by Al-Qaeda, and the majority of states (including China and Russia) supported Operation Enduring Freedom against Afghanistan as a legitimate exercise of the right of self-defence. There is also a principled basis for this shift: although the legal significance of these Resolutions is not entirely clear, Judges Buergenthal and Kooijmans in Wall (albeit in a Declaration and Separate Opinion respectively) point out that neither Resolution expressly or implicitly limits the application of the right of self-defence only to attacks carried out by state actors. In fact, the contrary seems to have been the case,¹⁴ and indeed the Security Council authorised action under Chapter VII of the Charter without ascribing these terrorist acts to a particular state in Resolution 1373.¹⁵ Similarly, in his Separate Opinion in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ¹⁶[DRC v. Uganda], Judge Simma called for an urgent reconsideration of the restrictive reading of Article 51 of the Charter in Wall, stating that these Resolutions “cannot but be read as affirmations of the view that large-scale attacks by non-State actors can qualify as ‘armed attacks’ within the meaning of Article 51”.¹⁷

Furthermore, it could be argued that what was fatal to Israel’s claim to self-defence in Wall was that self-defence cannot be invoked by a state to justify the use of force against an attack “originat[ing] within, and not outside”,¹⁸ its own territory (in that case, the Occupied Palestinian Territory). In contrast, Resolutions 1368 and 1373 contemplate acts of international terrorism that pose a global threat to international peace and security, not just within the territory of one state. A similar observation can be made regarding Resolution 2249, which was adopted unanimously in 2015 in response to the terrorist attacks in France. Thus, as Hakimi observes, most states do in practice tolerate the use of defensive force against non-state actors; and although they are unwilling to legitimise or validate them as lawful, such operations are in practice unlikely to be condemned or treated as unlawful.¹⁹ It is submitted that, in place of the current legal grey area, a more robust and defensible legal basis must be found for the exercise of the right of self-defence in these circumstances, to lend it greater legitimacy. Any such basis must be able to justify the victim state’s violation of the territorial sovereignty of the host state in (and from) which these non-state actors are operating; and the absence of such a justification accounts for a significant part of states’ difficulty with recognising a right of self-defence against non-state actors in the first place.²⁰ It is this issue that the next section will turn to address.

III. SELF-DEFENCE AND TERRITORIAL SOVEREIGNTY

Territorial sovereignty has long been established as a fundamental principle of the international legal order. Ruys and Verhoeven, for example, stress that state sovereignty “is and remains one of the basic pillars of international law and order and should not lightly be violated”.²¹ The use of force in self-defence against a non-state actor, within the territory of a non-consenting host state, thus prima facie constitutes an internationally unlawful violation of the host state’s territorial sovereignty. Such a use of force then needs to be separately justified; although Article 51 may authorise the use of force against the non-state actors themselves,²² it does not extend to the ancillary infringement of sovereignty. (For the purposes of this article, it is assumed that the non-state actors’ acts are not, in the first place, attributable to the host state itself.)

It is submitted that the suggestion (made, for example, by Tsagourias and Paddeu²³) that self-defence should be conceived of as a circumstance precluding wrongfulness currently provides the neatest solution. Under this approach and, to the extent that it entails a violation of the host state’s territorial sovereignty, the exercise of self-defence would be governed and justified by Article 21 of the Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”)²⁴ rather than by Article 51 of the Charter. This distinction would lend the issue greater analytical clarity. As Paddeu argues, “Article 51 and Article 21 codify different effects of the exercise of the customary right of self-defence in the legal order”. Article 51 provides the legal basis to justify the effect of self-defence on the prohibition on the use of force, whereas Article 21 would serve to preclude the “wrongfulness of an act of a State … if [it] constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations”²⁵ - the wrongful act in this case being the violation of the host state’s territorial sovereignty. Article 51 would therefore govern legal relations between the victim state and the non-state actor, while Article 21 would govern legal relations between the victim state and the host state.²⁶

Although this approach has yet to be accepted by states (or the ICJ), it would provide an analytically sound and normatively defensible framework to explain why the victim state’s right of self-defence extends to allowing it to use force in a way that would otherwise constitute an unlawful violation of the host state’s territorial sovereignty. Furthermore, since Article 21 of the ARSIWA operates only to excuse the victim state’s international responsibility for its otherwise wrongful act, this leaves open the possibility of the host state requesting compensation from the victim state for damage caused in the course of its use of defensive force.²⁷ As Tsagourias points out, this yields a “fair and proper” outcome that avoids disadvantaging the interests of the host state unnecessarily.²⁸

IV. UNRESOLVED QUESTIONS

Notwithstanding the benefits of this approach, it raises further questions about the scope and limits of the right of collective self-defence, such as that sought to be invoked by third states like the United States and United Kingdom against ISIS on behalf of Iraq. As the ICJ made clear in Nicaragua,²⁹ collective self-defence requires both (a) that the preconditions for individual self-defence are present, and additionally (b) that the victim state expressly requests third states to use force in its territory. Hence, while the exercise of the right of collective self-defence within the territory of Iraq (which requested via a letter to the Security Council in 2014, that the US “lead international efforts to strike [ISIS] sites and military strongholds, with [its] express consent”³⁰) is relatively uncontroversial, the use of force against ISIS within the territory of Syria (which has vehemently objected to unrequested military intervention in its territory as a violation of international law, the Charter, and its sovereignty and territorial integrity³¹) is hotly disputed. As Bannelier-Christakis argues, this makes it impossible to use “intervention by invitation” as a legal basis for third states’ use of force in Syria,³² since the consent of Syria’s government has been neither sought nor obtained. Other purported justifications for intervention in these circumstances, such as the “unwilling or unable” doctrine propounded by the United States,³³ also remain extremely contentious: indeed, Corten argues that such a doctrine is unlikely to ever be accepted by states, as it would lead to “a radical change in the interpretation of both the rule prohibiting the use of force and self-defence as its main exception”, and “would eventually mean the end of the collective security system enshrined in the Charter”.³⁴

However, if Article 21 is invoked to excuse a violation by Iraq of Syria’s territorial sovereignty in the exercise of its right of individual self-defence, and if Iraq itself expressly requests third-state intervention, then this may be taken to permit the use of force by third states against ISIS on Syria’s territory in their exercise of the right of collective self-defence. Article 21 would preclude wrongfulness³⁵ as long as the act constitutes a lawful measure of self-defence taken in conformity with the Charter, and Article 51 of the Charter does include such a right of collective self-defence. This does not seem to have yet been much discussed in academic commentary on the subject. While any use of force in self-defence is limited by the requirements of necessity and proportionality,³⁶ such a potential expansion calls for caution, especially since - as Gray argues - the effectiveness of using force against non-state actors is itself limited,³⁷ and may indeed be counterproductive.

V. CONCLUSION

Although the right of self-defence against non-state actors has been increasingly accepted in the practice of states, a firm legal footing for the exercise of this rightespecially when this would involve an infringement of the host state’s territorial sovereignty, as would likely be the casehas yet to be established. On one hand, established doctrines of international law have come under great strain, and compelling arguments have been made in support of the need for international law to adapt to allow effective action to be taken against evolving threats to global security.³⁸ On the other hand, the prohibition on the use of force is a cornerstone of the international legal order, and any widening of the right of self-defence should be treated with circumspection.

Going forward, it is submitted that a two-pronged justification, involving both (a) a reading of Article 51 of the Charter that takes into account the shift in state practice and the international community’s changing security needs; and (b) Article 21 of the ARSIWA, would provide a helpful framework for analysis, albeit that this may in turn have uncertain implications. Ultimately, attention must to be paid to the practice and changing attitudes of states to the use of force in response to new and unprecedented threats; and, drawing lessons from past interventions, states claiming a right to intervene on any ground must steer clear of any (real or perceived) abuse of the exceptions to the prohibition of the use of force, if they are to be seen as acting legitimately in furtherance of international peace and security.

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[1] Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge: Cambridge University Press, 2010) at 488.  

[2] Tom Ruys & Sten Verhoeven, “Attacks by Private Actors and the Right of Self-Defence” (2005) 10(3) J Confl & Sec L 289 at 312.

[3] United Nations Security Council, Resolution 2249 (S/RES/2249) (2015), at paragraph 5 of the Preamble.  

[4] Nicholas Tsagourias, “Self-Defence against Non-State Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule” (2016) 29 Leiden J Intl L 801.     

[5] Federica I. Paddeu, “Use of Force against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence” (2017) 30(1) Leiden J Intl L 93.     

[6] Monica Hakimi, “Defensive Force against Non-State Actors: The State of Play” (2015) 91 Intl L Studies 1, at 4 and 30.      

[7] Supra note 5.      

[8] [1986] ICJ Rep. 14.

[9] United Nations General Assembly, Resolution 3314, Definition of Aggression (1974).

[10] Supra note 8 at [195].

[11] [2004] ICJ Rep. 136, at [139].

[12] United Nations Security Council, Resolution 1368 (2001).

[13] United Nations Security Council, Resolution 1373 (2001).

[14] Supra note 11, Declaration of Judge Buergenthal, at [6]; see also Thomas Franck, “Terrorism and the Right of Self-Defense” (2001) 95 AJIL 839-840.  

[15] Supra note 11, Separate Opinion of Judge Kooijmans, at [35].

[16] [2005] ICJ Rep. 168.

[17] Ibid, Separate Opinion of Judge Simma, at [11].

[18] Supra note 11 at [139].

[19] Supra note 6 at 30.      

[20] Supra note 5 at 3.

[21] Supra note 2 at 310.

[22] Supra note 5 at 5-6.

[23] Supra notes 4 and 5.

[24] Articles on the Responsibility of States for Internationally Wrongful Acts, annexed to UN Doc A/RES/56/83 (2002).

[25] Ibid, Article 21.

[26] Supra note 5 at 27.

[27] Supra note 4 at 824.

[28] Ibid.

[29] Supra note 8 at [199].

[30] United Nations Security Council, “Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council”, S/2014/691(2014) at [5].

[31] United Nations Security Council, “Identical letters dated 17 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council”, S/2015/719 (2015); United Nations Security Council, “Identical letters dated 29 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council”, S/2015/1048 (2015). 

[32] Karine Bannelier-Christakis, “Military Interventions against ISIL in Iraq, Syria and Libya, and the Legal Basis of Consent” (2016) 29 Leiden J Intl L 743, at 774. 

[33] See United Nations Security Council, “Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General”, S/2014/695 (2014) at [2].

[34] Olivier Corten, “The ‘Unwilling or Unable’ Test: Has it Been, and Could it Be, Accepted?” (2016) 29 Leiden J Intl L 777 at 797. 

[35] Subject to obligations under international humanitarian law and non-derogable human rights provisions: International Law Commission, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries” (2001) at 74. 

[36] Emphasised by the ICJ in e.g. Nicaragua (supra note 8) and DRC v. Uganda (supra note 17).  

[37] Christine Gray, “The Limits of Force” (Volume 376), Collected Courses of the Hague Academy of International Law (2015) at 111.

[38] See Christian J. Tams, “The Use of Force against Terrorists” (2009) 20(2) Eur J Intl L 359.

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Legal Translation of Common Law Derivative Action in the Indonesian Company Act (No. 40 of 2007)

A PDF copy of the article, along with its bibliography in full, is available for download here.

The Editors would also like to thank Mr. Sean Rafferty for his assistance and contibution, which have been significant in the course of editing this work.

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Common Law Derivative Action in the Indonesian Company Act (No. 40 of 2007)

Novritsar Hasintongan Pakpahan*

I. INTRODUCTION

Provisions for derivative actions in the Indonesian Company Act¹ (the “Act”) provide shareholders with a means to act on behalf of the company, which are additional to statutory derivative actions. While the aspect of acting on behalf of the company closely parallels common law derivative actions, existing legal translations of the Act do not sufficiently explain the concept. Misunderstanding is common since there is a difference between the legal systems under Indonesian civil law² and the common law³ contained in the Act. Legal translation is therefore necessary to understand the implementation of the legal concept of common law derivative action. The Indonesian Government has yet to issue an official English translation of its Act. Accordingly, this study focuses on more popular, frequently-used, or credible translations to both laypersons and legal practitioners. It focuses on the three translations by the UNODC, Irma Devita, and Global Business Indonesia – which have been reflected on the top 5 results of Google search⁴ and Alexa⁵ as at July 2nd, 2017.

In a prior commentary referring to Jopek-Bosiacka, the author has stressed that legal translation is not merely a translation of legal texts between two different languages, but also translates at least two different legal systems.⁶ Since there is no specific legal translation technique exists,⁷ it is apposite to consider 6 translation techniques that are often applied by Indonesian legal translators. These are: literal translation, pure borrowing, naturalized borrowing, mixed borrowing, description, and expansion.⁸

II. LEGAL TRANSLATION OF COMMON LAW DERIVATIVE ACTION IN INDONESIAN COMPANY ACT

There are three translations of s 97(6) of the Act for the same phrase:

“Atas nama Perseroan, pemegang saham yang mewakili paling sedikit 1/10 (satu persepuluh) bagian dari jumlah seluruh saham dengan hak suara dapat mengajukan gugatan melalui pengadilan negeri terhadap anggota Direksi yang karena kesalahan atau kelalaiannya menimbulkan kerugian pada Perseroan”.⁹

A. The UNODC translation

The first translation by United Nations Office on Drugs and Crime (“UNODC”)¹⁰ applied literal translation throughout; this can be observed where the resultant translation maintains exactly the same sentence structure.¹¹ For example, “…against members of Directors whose faults and negligence create damages…” is a word-for-word translation from “…terhadap anggota Direksi yang karena kesalahan atau kelalaiannya menimbulkan kerugian…” without any change towards the grammatical structure of the phrase.

However, for legal practitioners, literally translating phrases as above may cause confusion between common law derivative action and statutory derivative action. It is important to point out that there is significant difference between the two. The former is submitted by minority shareholders on behalf of the company and regulated at common law and equity, whereas the latter’s scope is ruled in a statute and wider than the former because it covers director’s duty to exercise reasonable care, skill, and diligence.¹² The translation above is ambivalent as to whether a single shareholder who represents a minimum of one-tenth of entire shares is required, or whether several shareholders who represent the same proportion of shares must be gathered instead. Practitioners will be more uncertain about the separate requirements at common law and statute for submitting a derivative action on behalf of corporations.

Furthermore, the term ‘damages’ may be confused with another legal concept of ‘loss’; the former refers to compensation for damages caused, whereas the latter relates to the actual losses incurred by director of the corporations. The term ‘kerugian’, as mentioned by the Act, contained the concept of loss caused by the personal wrongdoings of director. Wilamarta even added that there should be compensation for such wrongdoings of a director as formulated in the Act.¹³ Therefore, the term ‘loss’, or specifically “loss caused by negligence”, would be best suited to translate the term ‘kerugian’ rather than ‘damages’ as regulated in the Act. Literal translation applied by the translator also confuses by converting “pemegang saham” into “shareholders” rather than “shareholder”, which leads the reader to assume that there must be several shareholders to allow any shareholder to submit a derivative action. It is important to note the use of “pemegang saham” in the plural form rather than singular form because it would be difficult and rare for a single shareholder to have 1/10 (one-tenth) of entire shares in reality. That is why the translators, lay persons, and legal practitioners do not really differ the singular or plural form of “pemegang saham” and would immediately assume “pemegang saham” in plural form instead of singular form. Hence, although the translation by UNODC can be considered generally sufficient for use, it is submitted that there is room for improvement to prevent these misunderstandings.

B. Irma Devita’s translation

The second translation by Irma Devita¹⁴ uses literal translation and explicitation. Firstly, the translator chose to use literal translation to translate half of the sentence. This choice of literal translation can be observed from the similar grammatical structure of the translation. For example, “…representing at least 1/10 (one tenth) of the total number of shares with voting rights may file suit…” is a literal translation from “…mewakili paling sedikit 1/10 (satu persepuluh) bagian dari jumlah seluruh saham dengan hak suara dapat mengajukan gugatan…”. Also, as observed in the UNODC translation above, Irma Devita prefers to use ‘shareholders’ to translate ‘pemegang saham’ rather than using only ‘shareholder’. This is similarly germane to confusion among legal practitioners regarding the minimum number of shareholders required to apply for derivative actions, which could be a shareholder or several shareholders as long as they represent 1/0 (one-tenth) of the entire shares with voting rights.

However, Irma Devita used explicitation to clarify the term ‘kerugian’. The term ‘kerugian’ has two possible literal interpretations in Indonesian which are separate legal concepts; it may refer either to damages caused by personal wrongdoing, or losses as a part of operational cost of a corporation. Accordingly, the phrase “… menimbulkan kerugian pada perusahaan…” has two literal translations, namely: “… create damages to a corporation” or “… create losses to a corporation”. Irma Devita chose to use the latter phrase referring to ‘losses’ so as to explicate the ambiguous translation of the term ‘kerugian’. This employment of explicitation adds information of the source-text which is implied in the text.¹⁵ Similarly in the next part of the sentence, Irma Devita’s translation maintains the reference to losses, and selects the phrase ‘… give rise to the losses…[emphasis added]”. This is likewise a form of explicitation: it accurately connotes that a member or director’s fault or negligence is more relevant for consequential losses caused by it, and not merely every loss suffered by the company. Companies may well incur losses as a result of technical operations, which are separate from those caused by their member or director. This translation not only shows that the translator has a strong understanding of a company’s technical operations, but is also more helpful for legal practitioners where it defines which losses they may bring a derivative action for the true requirement for derivative actions.

C. Global Business Guide Indonesia’s translation

The third translation by Global Business Guide Indonesia¹⁶ uses literal translation and modulation. The use of literal translation techniques can be observed where the first half of a sentence is translated word-for-word: “… representing at least 1/10 (one-tenth) from the total number of shares with voting right, may submit a claim to a District Court…” literally translates to “…mewakili paling sedikit 1/10 (satu persepuluh) bagian dari jumlah seluruh saham dengan hak suara dapat mengajukan gugatan melalui pengadilan negeri…”. Similar to the previous translators, Global Business Guide Indonesia chose to use ‘shareholders’ to translate ‘pemegang saham’ rather than using only ‘shareholder’. This literal translation may ease the work of translators easily without changing the essential meaning of the formulation of the section of the Act.

The difference, however, is that Global Business Guide Indonesia also employs modulation to translate this section. Modulation helps readers understand the extended meaning of the sentence’s concept by changing the point of view.¹⁷ This can be seen from the translation of “…terhadap anggota Direksi yang karena kesalahan atau kelalaiannya menimbulkan kerugian…” to “…against member of the Board of Directors which causes loss to the Company due to their fault or negligence.” In contrast, a literal translation such as that used by UNODC would be “…against members of Directors whose faults and negligence create damages…” Modulation here aids in understanding this concept by directly indicating the relevant party whose fault or negligence has caused loss. This translation of Global Business Guide Indonesia clarifies that it was the fault or negligence of a singular member of the Board of Directors, rather the fault or negligence of the entire Board.

D. General assessment across popular translations

A similarity found throughout the aforementioned three translations is the preference in translating ‘pemegang saham’ as ‘shareholders’ instead of ‘shareholder’. This choice of words likely arose of the translators’ practical consideration – that it would be absurd if a single shareholder was legally required to have such a large number of shares, even though the large number of shares would be some sort of investment for the shareholder and become equity for the company involved.¹⁸ To illustrate the point: Jakarta Post reported that the shares of highest valued company in Indonesia, Indocement Tunggal (“INTP”), would cost about Rp. 17,332 (equivalent to S$1,74096) per share out of Rp. 7.74 Trillion worth of sale.¹⁹ It showed how difficult it would be for a single shareholder to have 1/10 (one-tenth) of Rp. 7.74 Trillion as regulated in s 97 (6) of the Act.²⁰ Furthermore, such a large purchase of shares must be paid-up in full without instalments under Article 22 of Indonesian Investment Coordinating Board (“BKPM”) Regulation Number 5 of 2013.²¹ Hence, although the term ‘pemegang saham’ is a singular noun contrary to its plural translation as ‘shareholders’, the translations above are nonetheless sensible. They reflect the practicalities of the Indonesian Companies Act as correctly understood by the translators.

However, none of the above translations sufficiently explain the nature of derivative actions in the Act. Notwithstanding their mention of minimum requirements to submit these actions, these translations do not clearly indicate that “derivative action” in Section 97(6) of the Act employs aspects of both statutory and common law derivative actions. This runs possible risks where legal practitioners, especially those accustomed to the Common Law legal system, may automatically assume that the derivative action in Indonesia refers to common law derivative action.²²

E. Suggestions for improvement

All 3 translation techniques should therefore be used in translating Section 97 (6) of the Act (namely literal translation, modulation, and description). First, literal translation can be used to translate the phrase of “Atas nama Perseroan, pemegang saham yang mewakili paling sedikit 1/10 (satu persepuluh) bagian dari jumlah seluruh saham dengan hak suara…” into “On behalf of the Company, the shareholders representing at least 1/10 (one-tenth) from the total number of shares with voting rights…” similar to the translation by Global Business Guide Indonesia.²³ This translation technique builds the fundamental understanding of the formulation of Section 97(6) since the literal meaning of the first phrase best captures the core of the legal concept of the legal requirements for legal subject to make claim or submission of derivative action.

On the other hand, the subsequent phrase would be more accurately translated via modulation: “…dapat mengajukan gugatan melalui pengadilan negeri terhadap anggota Direksi yang karena kesalahan atau kelalaiannya menimbulkan kerugian pada Perseroan”, can be translated into “…may submit a claim to a District Court against member of the Board of Directors which causes loss to the Company due to their fault or negligence”. Modulation here clarifies the identity of the subject whose fault or negligence causes the Company’s loss. This avoids ambiguity, and is preferable to a literal translation. With regards to applying Description as a translation technique, 2 possible applications are suggested. The first is to apply Description in the formulation of the section itself, where a description of the legal concept may be appended after the first phrase. (that is to say, “On behalf of the Company, …”) Descriptions attached here can elaborate on the similar requirements to be qualified for submitting a derivative law. For instance, the description may add “…, similar to common law derivative action that requires the minority shareholder to submit a claim on behalf of the company instead of their own personally”.

This additional description clarifies the kind of derivative action which a minority shareholder would need to submit under this section of the Act, although it may add to the section’s length. It is further recommended that such descriptions be supported by opinions from an expert in corporate law, and it would be sufficient if this source’s reference was indicated in the Explanation of the Act. The source need not be specified explicitly in the formulation itself, as noted by the term [learned textbook authors].²⁴

Alternatively, Description can also be applied in the Explanation of each section of the Act. These Explanations supplement each section of the Indonesian Company Act, and are presently required to contain a legal norm, and be formulated in short and clear sentences as specified in Point 77 of The Annex of Regulations Act Number 12 of 2011²⁵. These rules are to maintain the clarity of legal norms in sections, but it is submitted that Descriptions can further elaborate on these legal concepts. An example for description translation technique applied in the explanation of an act is as follows:

“This section regulates derivative action that may be submitted by minority shareholders. The derivative action in this Act is similar to the common law derivative claim in the matter of submitting on behalf of the company, where the minority shareholder must have specific minimum requirement of shares and valid voting rights, and can only be submitted against breach of negligence. Although it is regulated in a statute, rather similar to statutory derivative action, derivative action in this section resembles the common law derivative action since it has same elements as common law derivative action referring to Dignam’s opinion (Dignam and Lowry, Company Law, 2012, p. 109)”.

III. CONCLUSION

Legal practitioners would be confused between the three translations mentioned above, especially if they have been accustomed to derivative actions at Common Law. Therefore, literal translation, modulation, and description translation techniques should be combined to create a proper legal translation of Section 97 (6) of the Act. This is necessary to provide both lay persons and legal practitioners a proper understanding and prevent confusion. 

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*Novritsar Hasintongan Pakpahan. Graduated as Law undergraduate of Airlangga University and English education undergraduate of Wijaya Kusuma University of Surabaya. Currently studying as a first-year student in Master of Law program in Faculty of Law of National University of Singapore specialising in Corporate and Financial Services in 2016/2017. All errors remain Novritsar’s own.

[1] No. 40 of 2007.

[2] Frank Tumbuan, “Two-Tier Board and Corporate Governance” (Pointers for discussion delivered at the One-Day Seminar on Capital Market and Corporate Governance Issues in Bali, Indonesia, 7 September 2005), p. 7-8.

[3] Susan Sarcevic, New Approach To Legal Translation (The Hague: Kluwer Law International, 1997), p. 67.

[4] Google Search Results, https://www.google.co.id/#q=indonesian+company+act+40+2007, accessed on July 2nd, 2017.

[5] Alexa Search Results, http://www.alexa.com/siteinfo/irmadevita.com;  http://www.alexa.com/siteinfo/gbgindonesia.com; http://www.alexa.com/siteinfo/unodc.org, accessed on July 2nd, 2017.

[6] As previously argued by the author in Novritsar Hasintongan Pakpahan, English-Indonesian Translation Techniques Applied on Legal Terms in John Grisham’s ‘The Litigators’, The Novel (Bachelor of Education, Universitas Wijaya Kusuma, 2015) [unpublished], at p. 5

[7] Ibid, at p. 22.

[8] Ibid.

[9] Undang-Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas, Lembaran Negara Republik Indonesia Tahun 2007 Nomor 106, Pasal 97(6).

[10] United Nations Office on Drugs and and Crime, Law of The Republic of Indonesia Number 40 Year 2007 Concerning Limited Liability Company.

[11] Fawcett explained that literal translation doesn’t make any change from the source-language to the target-language grammar, in Peter D. Fawcett, Translation and Language. Linguistic Theories (Great Britain, St. Jerome Publishing, 1997), at p. 36

[12] Alan Dignam and John Lowry, Company Law (Great Britain: Oxford University Press, 2012) at p. 202.

[13] Misahardi Wilamarta, Hak Pemegang Saham Minoritas dalam Rangka Good Corporate Governance (Jakarta, Fakultas Hukum Universitas Indonesia, 2002) at p. 306.

[14] Irma Devita, Law of The Republic of Indonesia Number 40 of 2007 Concerning Limited Liability Companies

[15] Lucia Molina and Amparo Hurtado Albir, Translaton Techniques Revisited: A Dynamic and Functionalist Approach (Barcelona: Meta XLVII , Universitat Autonoma de Barcelona, 2002), at p. 500

[16] Global Business Guide Indonesia, Law of The Republic of Indonesia Number 40 of 2007 Concerning Limited Liability Company.

[17] Supra note 11, at pp. 499-500.

[18] Shareholders must have at least 1/10 (one-tenth) from the total number of shares with voting rights, in Rudhi Prasetya, Teori & Praktik Perseroan Terbatas (Jakarta: Sinar Grafika, 2011), p. 26.

[19] Adam Rizky Nugroho, ‘Five Most Wanted Stocks for Foreign Investors’ in http://www.thejakartapost.com/news/2016/09/17/five-most-wanted-stocks-for-foreign-investors.html, accessed on October 18th, 2017.

[20] Supra note 9.

[21] Peraturan Kepala Badan Koordinasi Penanaman Modal Republik Indonesia Nomor 5 Tahun 2013 tentang Pedoman dan Tata Cara Perizinan dan Nonperizinan Penanaman Modal.

[22] Supra note 3.

[23] Supra note 12.

[24] Supra note 4 at p. 190.

[25] Lampiran Undang-Undang Pembentukan Peraturan Perundangan-Undangan Tahun 2011.

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Singapore Law Review Annual Lecture 2017 - Prosecution in the Public Interest

Singapore Law Review Annual Lecture 2017 — Prosecution in the Public Interest

Tan Ming Ren and Liew Jin Xuan

The Singapore Law Review Annual Lecture 2017 was delivered by Attorney-General, Mr Lucien Wong SC (“AG Wong”). Notably, AG Wong recently took office as Singapore’s 9th Attorney-General on 14 January 2017, succeeding Mr V K Rajah SC. AG Wong’s lecture, which was entitled “Prosecution in the Public Interest”, covered issues such as what the public interest is, and how prosecutorial discretion interacts with it.

Interestingly, AG Wong highlighted that the public interest permeates all the decisions that are made by the Attorney-General’s Chambers (“AGC”), and determining what is in the public interest is something which AGC officers engage in on a daily basis. Nevertheless, AG Wong opined that it is impossible to lay down a definitive statement as to what the public interest is because this has to be determined on a case-by-case basis.

The bulk of AG Wong’s speech was focused on the 4 guidelines related to prosecuting in the public interest:

1. Prosecutions are conducted in the name of the public;
2. Offences are prosecuted for the good of the public;
3. Proceedings are conducted according to values expected by the public; and
4. Action is taken in the eye of the public.

Prosecutions are conducted in the name of the public

While it is widely known that every prosecution initiated by the AGC is named Public Prosecutor v [name of accused], AG Wong emphasised that this is not merely a naming convention. In other words, the fact that cases are brought by the Public Prosecutor means that decisions to prosecute are made independently.

As the Attorney-General, AG Wong wears 2 hats. Firstly, art 35(7) of the Constitution of the Republic of Singapore (“Constitution”) provides that AG Wong is to act as the Government’s chief legal advisor. Secondly, art 35(8) of the Constitution vests in AG Wong the power to institute, conduct or discontinue any proceedings for any offence. These two functions are separate and distinct. In particular, AG Wong stressed that prosecutorial decisions are made by himself and his Deputies.

The second point is that criminal prosecutions are initiated by the AGC not to further the private interests of the victim, but to further the larger public interest. While AGC does take into consideration the views of the victim, AG Wong emphasised that they are not determinative.

Offences are prosecuted for the good of the public

AG Wong mentioned that various factors are considered when it comes to determining what is for the good of the public, and it is impossible to give all-encompassing factors. However, there are largely 4 objectives they often aim to achieve via prosecution.

Maintain a safe and secure environment in Singapore

The AGC maintains a non-negotiable policy to prosecute crimes that affect the public safety in Singapore. Instances of such crimes include corruption, serious financial crime, drugs and violent crimes. AG Wong highlighted that Singapore today is deemed as one of the safest cities in the world, and is heartened to note that in 2016, Singapore reached 30-year lows in violent crimes, housebreaking, theft and robbery.

In particular, safeguarding social harmony is also part of maintaining the safety and security of Singapore. Situations around the world shows that damaging social relations can result in serious consequences.

Promote a culture where rights are respected

By promoting a culture where rights are respected, it provides for a conducive environment for business. Business may be competitive, even cutthroat, but they must adhere to the rules. There is a zero-tolerance policy against money laundering and corruption. Should corruption be tolerated in Singapore, our reputation as a safe and honest place to do business would be irreparably damaged.

Promote strong public institutions

The promotion of strong public institutions is essential for the peace, harmony and prosperity of Singapore. AG Wong went on to explain the seriousness of the crime of contempt of court. Though it may not fit with layperson’s view of a crime, it is in fact viewed as the one of the most serious offences a person can commit. There is a need for strong public confidence in judiciary to be maintained (both locally and abroad).

Serve larger objectives that may not be immediately apparent to most (e.g. promoting environmental sustainability)

AG Wong introduced the fourth objective with an example Singaporeans are all too familiar with - the haze. The haze not only has an impact on climate change, but also on human health. With recent changes in the law, Singapore is now in a position to prosecute companies within Singapore who contribute to pollution overseas. AG Wong also noted the rise in fake news and offences against some of the most vulnerable members of society, such as domestic workers and the elderly. On the topic of offences against elderly persons, AG Wong explained that as the elderly have worked hard their entire lives, they often have substantial savings, making them potential bribe targets for fraudsters. There is hence a need to provide protection of law by severely prosecuting offenders, achieving the ultimate objective of deterrence.

Proceedings are conducted according to values expected by the public

AG Wong explained that prosecution is also done according to values of the public. Prosecution does not aim to win at all costs, but rather, to obtain a just outcome. Neither is it a policy of the AGC to always automatically prefer the most serious charge. AG Wong emphasised that every defendant has the right to claim trial, and the AGC will not push for overly excessive and punitive sentences just because the defendant has decided to claim trial. However, it is important to note that the way the defendant pleads his case may affect the sentencing outcome.

Where a serious offence has been committed, but the evidence may not be as compelling, the AGC will still likewise pursue a conviction.

Action is taken in the eye of the public

AG Wong stressed that prosecutions were open to valid public scrutiny, and rightly so. Nonetheless, he maintained that scrutiny would not detract from the Prosecutorial drive toward justice, and hopes that the public may scrutinise fairly. Whilst there is no hesitation to respond to public interest for a tougher sentence, they will similarly not compromise on procedural fairness for the offender. He noted that this must be so, even if ultimately it undermines the Prosecution’s case. An “even-handed approach” is hence taken by the Prosecution when prosecuting offenders. He noted, “The public, and the public interest, expects no less from us”.

Sentencing in the Public Interest

On sentencing, AG Wong highlighted that the prosecutors also submit on sentencing with the public interest in mind, on top of prosecuting in the public interest. While this may seem odd at first blush, it is indeed not surprising that all parties (i.e. prosecutors and defence counsel) have a duty to help the Court arrive at a just sentence. In this regard, AG Wong clarified that it is not AGC’s practice to always ask for the highest sentence possible. This would depend on the individual case at hand and takes into account larger societal objectives.

A point which is noteworthy is AG Wong’s firm stance on 2 particular types of offences, namely, sexual offences against minors and offences against foreign domestic workers. As regards such offences, AG Wong made it clear that the prosecution would press for deterrent sentences in the interest of the public.

AG Wong also cited another recent example where the AGC disagreed with the original benchmarks laid down in the case of PP v Chow Chien Yow Joseph Brian [2016] 2 SLR 335, which involved national service defaulters. As the AGC was of the view that the existing benchmarks did not fully reflect the seriousness of the offence, the prosecutors made submissions to the court to increase the benchmark sentences in order to highlight the importance of the national service obligation. These submissions were subsequently accepted by the High Court in PP v Sakthikanesh s/o Chidambaram [2017] SGHC 178.

In contrast, pursuing even-handed justice means that a just sentence is one that is also fair to the accused. In that regard, the prosecutors will consider mitigating factors carefully and may even take active sentencing positions that favour the offender. For instance, in PP v Lim Choon Teck [2015] 5 SLR 1395, the prosecution appealed against the 8-week sentence imposed on a cyclist who had injured a 69-year-old woman on the ground that it was manifestly excessive. This was certainly unconventional as it was “the first time the Prosecution had appealed against a sentence on this ground” (at [1]). Eventually, the sentence was reduced to 2 weeks by the High Court.

In sum, these examples clearly reflect AGC’s commitment towards sentencing in the public interest, and it is indeed encouraging to know that AGC does not view accused persons as their “adversaries” although the criminal justice system is adversarial in nature.

Conclusion

In sum, AG Wong highlighted that prosecutorial discretion is a multifaceted and complicated task which requires a balance of various competing factors. Reaffirming the AGC’s commitment towards prosecuting in the public interest and for the good of Singapore, AG Wong noted that no single person in the AGC unilaterally “determines” the public interest in the AGC. Ultimately, a fully considered decision can only be reached through the process of open engagement.

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The SLR would like to express its gratitude to AG Lucien Wong and Ms Deborah Barker, who have afforded us the opportunity to organize the event.

The SLR's membership in 2017-2018.

Executive Committee members of the SLR for 2017-2018.

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For a more personal take on the lecture, here is an article by Justified: http://justified.nuslawclub.com/slr-annual-lecture-2017-prosecution-in-the-public-interest/

The SLR Annual Lecture 2017 has been featured in The Straits Times: http://www.straitstimes.com/singapore/prosecution-to-keep-apace-with-evolving-public-interest-attorney-general-lucien-wong

The Reserved Election Mechanism: A Step in the Right Direction for Promoting Multiracialism and Protecting Minority Rights?

A copy of this article in PDF format can be downloaded here.

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The Reserved Election Mechanism: A Step in the Right Direction for Promoting Multiracialism and Protecting Minority Rights?

This article was contributed by Ms. Susanna Yim, who is presently pursuing her third and final year in her Bachelors' in Law at the Singapore Management University. The Editors would like to thank her for going the extra mile to make this submission.

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The Reserved Election Mechanism (‘REM’) was introduced into Singapore’s Constitution recently as a response to Singapore’s current state of multiracialism. Specifically, Singapore has not evolved into a post-racial society yet and the REM was deemed necessary to strengthen multiracialism. This novel initiative has been met with varied response. This paper argues that, on balance, the REM is a robust example of the constitutional importance accorded to multiracialism and minority rights in Singapore. The mechanism holds true to constitutional principles and shows fixed commitment to guaranteeing minority rights. Still, the mechanism has room for improvement. Largely, the inescapable effects of implementing the mechanism and the perception of minorities that the scheme perpetuates among the population may end up, though guaranteeing minority rights, undermining multiracialism drastically. Additionally, the current community categorisation may water-down the REM’s protection of certain minorities’ rights. Nevertheless, considering the inherent delicacy of presidential office, due to its solitary and high-stakes nature, the REM remains sufficiently balanced.

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I. INTRODUCTION

Multiracialism is the proverbial glue holding Singapore’s otherwise racially fragmented society together. Unsurprisingly, multiracialism has been accorded constitutional importance since Singapore attained independence in 1965. In 2016, the Reserved Election Mechanism (“REM”) was introduced in furtherance of this ideal.

The REM, established by Article 19B of the Constitution,¹ operates such that within every five terms of the Elected Presidency (“EP”), individuals from each of the three constitutionally-defined communities² are elected into the Presidential Office (the “Office”) at least once. This guarantees each community’s representation in the highest office every 30 years. The fact that the REM is constitutionally-entrenched speaks volumes of the paramountcy accorded to it in promoting multiracialism.

II. MULTIRACIALISM AND MINORITY RIGHTS

Multiracialism entails tolerating each ethnic community’s cultural values. Minorities generally refer to numerically inferior or subordinated groups in society. The attitude espoused in Singapore is one of promoting multiracialism and protecting minority rights.

A. Protection of minority rights

Generally, minority communities require formal arrangements by the government as reassurance that they will not be marginalized in their country.³ This is done by giving the minority communities autonomy and an active stake in the nation through power-sharing arrangements.⁴

Consequently, no community is excluded when it comes to decision-making and the use of executive power, as seen in Singapore’s Group Representation Constituencies (“GRC”).⁵

Moreover, minority communities face disadvantages due to their minority status, ⁶ especially since Singapore is not a post-racial society yet.⁷ Thus, efforts may have to be made to level the playing field for all communities through affirmative action,⁸ for example with the REM.

B. The delicate balance between minority protection and multiracialism

According additional rights to minorities may be perceived by non-beneficiary communities as unfairly privileging minorities, thereby increasing racial awareness instead of minimising it. Therefore, the government introduced the ethos of meritocracy to overcome this inescapable by-product of affirmative action; without meritocracy, “suspicion and prejudice [will] fester and grow” between communities.⁹ The adherence to democracy is also useful in this balancing exercise as it assures all communities that their views would be considered and represented.

III. HOW THE REM PROMOTES MULTIRACIALISM AND PROTECTS MINORITY RIGHTS

A. The REM recognizes distinct cultural identities, thus allowing it to include all races in its precise workings

First, the major racial communities of Singapore are accounted for in Article 19B(6).¹⁰ These neat delineations provide a clear basis for the rotation of the Office among the communities so as to promote multiracialism. This allows a systematic application of the REM, leaving little room for ambiguity; it is useful to make a contrast with the similar rotating-presidency scheme adopted in Nigeria.¹¹ The Nigerian example has largely been criticized as having failed due to the ambiguous wording of its operative mechanism, which allowed certain communities to entrench their position of power instead of giving way to other communities as the Nigerian Peoples Democratic Party Constitution had intended.¹²

Further, the Presidential Elections Act¹³ introduces a Community Committee which will issue a community certificate to each election candidate¹⁴ to declare which community he or she belongs to, thus facilitating the counting of reserved elections. ¹⁵ Through this, the categorizing of each community becomes less semantic as a hand-picked group of individuals can better deal with the complexity of racial differentiation¹⁶ than mere words in a statute. The Committee will be instructed to take an inclusive approach in their assessment to strike a balance between ethnicity and identity, especially for individuals of mixed heritage.¹⁷ This clearly demonstrates the careful treatment of the sensitive issue of race and how the REM gives effect to multiracialism by considering all communities.

B. The REM demonstrates fixed commitment to representing minorities in the Office

Second, the REM safeguards minority rights by guaranteeing the election of a minority candidate every so often. This fixed commitment has a direct effect, leaving no room for ambiguity or discretion that may result in an alternative outcome that discriminates against minorities. As such, the minority groups should appreciate the REM for ‘championing’ their access to the Office. In contrast, consider the Serbian example. The requisite percentage of minority population in local communities for officialising the use of their minority language was left to local assemblies’ discretion. This resulted in biased local assemblies terminating the official use of minority languages in several communities. The minorities had proposed and would have preferred a set percentage instead of having to subject the protection of their language rights to the discretion of the local assemblies.¹⁸

C. The REM is consistent with constitutional ideals cherished in Singapore

1. Facilitates Representative Democracy

Third, representative democracy is facilitated as the Office remains multiracial over time.¹⁹ This is observed on two levels: firstly, since the President represents the nation itself in the global arena, the occasional minority President would show that Singapore consists not only of Chinese people, but also Indians, Malays and other racial minorities. Secondly, the REM allows wider participation in the EP since all communities would have one of their own taking the Office at least once every five terms.

2. Demonstrates substantive and procedural equality

Fourth, by reserving elections for communities under-represented in the EP, the REM has the effect of ensuring substantive equality¹² since it levels the playing field to allow equality of opportunity.²¹ This can be seen as giving effect to the constitutional principle of equality.²² Additionally, the same qualification criteria in Article 19²³ is applicable to both the reserved and the open elections, thus upholding procedural equality in the mathematical sense that only those who meet the threshold qualifications can stand for election.²⁴

D. The REM is a self-correcting mechanism

Fifth, the REM’s hiatus-trigger²⁵ is laudable as it gently nudges the population towards the goal of post-racial voting; once Singaporean society can vote in a manner that apparently does not indicate racial-bias,²⁶ the REM would not be triggered.

Even if this hiatus-trigger is perceived to conflict with democracy and meritocracy, this would not remain the case for an indefinite duration. If the REM is triggered for three consecutive terms for each of the three constitutionally-defined communities to install in turn one of their own in the Office, the subsequent two elections will be open elections and, thus, as democratic and meritocratic as possible. The only criticism then would be that citizens must wait for these two elections within every five-term-cycle to have ‘truly’ democratic, meritocratic elections.

IV. CONTRASTING THE REM WITH EXISTING SAFEGUARDS

The EP is a particularly vexed platform to promote multiracialism and protect minority rights because of the solitary and high-stakes nature of the Office. In contrast, the GRC system²⁷ involves multiple people, allowing a degree of simultaneous power-sharing. Additionally, the Presidential Council for Minority Rights scrutinizes parliamentary bills and the outcome of such scrutiny would invariably benefit all communities;²⁸whereas the REM appears to benefit only one community each time it is triggered. Lastly, various constitutional articles²⁹ can be relied upon by individuals from all communities at any point in time in litigation;³⁰ whereas the REM is triggered only once in a while for a specific community when the conditions are right. Thus, the election of the President through the REM may periodically appear as a zero-sum game to be won by one community at the expense of all others.

Nonetheless, the REM is a step in the right direction for promoting multiracialism and protecting minority rights. A further step in the right direction would be to constitutionally provide for membership in the Council of Presidential Advisors to be multiracial as well, so that there is more opportunity for all the communities to engage in simultaneous power-sharing in relation to the high-stakes Office.

V. QUAERE: BUT DOES THE REM REALLY PROMOTE MULTIRACIALISM AND/OR PROTECT MINORITY RIGHTS?

A. Yes, the REM protects minority rights, but at the expense of meritocracy and democracy, ultimately detracting from multiracialism

First, while meritocracy appears to be upheld, it is also severely compromised – because the highest office of the land is no longer for the nation’s most deserving candidate but merely a good enough candidate from the community it is being reserved for.

Nevertheless, there have been calls to re-evaluate meritocracy considering the changing paradigm; meritocracy measures the individual’s performance but fails to account for additional inherent advantageous factors that the individual may have as against another individual of comparable ability.³¹ Arguably, an individual’s community can be considered as one of these factors, particularly in the context of elections.³² Further, the qualification criteria is applied indiscriminately of race,³³ thus retaining some semblance of meritocracy. Moreover, this call to re-evaluate meritocracy is consonant with ensuring substantive equality.³⁴

Second, the REM erodes democracy. Reserving elections for one community substantially reduces voters’ choice. Additionally, the Community Committee, which issues community certificates, is appointed by the Prime Minister on the nomination of the PCMR.³⁵ This may result in a parallel controversy as in the uncontested 2005 Presidential Elections, where only one candidate was awarded the Certificate of Eligibility and thus became a ‘walk-in’ President. This consequently sparked furore as to the Committee’s decision and casting doubt as to whether the election was genuinely democratic.³⁶

A potential area for abuse arises where candidates of mixed heritage are concerned: the Committee may choose to identify him as part of a particular community to bar or allow him to participate in a reserved election, or, in the case of an open election, affect the cycle for future elections.

Further, the basis on which the Community Committee is to make their decision is unclear. The Committee is to be guided by “the merits of the case”;³⁷ but what are these merits? For instance, would the proficiency of the candidate in his mother tongue be relevant? More information would be helpful in promoting transparency and dialling down the disquiet surrounding the REM.³⁸

B. No, the REM mechanically categorizes communities to the extent of over-homogenization

Third, the categorization of communities is inherently flawed, undermining both minority rights and multiracialism. While the process of declaring which community each candidate belongs to is now more palatable due to the Community Committee,³⁹ the constitutional categorization itself is objectionable. Although these groupings have been utilized by the government for ease of administration,⁴⁰ they over-homogenize and over-simplify the exquisitely diverse communities in Singapore,⁴¹ thus eroding multiracialism as defined above.

The government should re-formulate this categorization, particularly the “Indian and others” category. Given the sizeable increase of these subsumed communities⁴² and the apparent failure to appreciate their cultural differences, it seems unfair that these distinct communities have been collapsed into one convenient grouping – a blatant over-homogenization which has been unconvincingly rationalized as being a statistical decision. A practical effect of this is that, in extreme cases, instead of having a member of their community sitting in the Office at least once every five terms, either of the groups may have to wait for ten terms or more before a member of their community is elected.

C. No, the REM only promotes multiracialism and protects minority rights superficially

One must ask: how far can the REM go toward these two objectives? Undeniably, the REM will make the Office more superficially multiracial over time as a member of each of three communities takes its turn in the ‘hot seat’. However, such appointment per se does not necessarily translate into promotion of multiracialism and protection of minority rights, unless the EP wields his power and makes decisions and effects policies towards such ends. Should this happen, it is nonetheless hoped that the EP does not go ‘overboard’ and show bias towards a particular community and thereby become antithetical to representative democracy.⁴³

VI. CONCLUSION

Promoting multiracialism and protecting minority rights requires a fine balance. The REM has struck a tenuous one by providing both guaranteed representation of all communities and some semblance of meritocracy. Its hiatus-trigger also ensures any unhappiness caused is short-lived. Nevertheless, its categorization of communities could do with some refinement.

The REM, being written into the Constitution, becomes part of the supreme law of the land. However, it is not a foregone conclusion that multiracialism will be promoted or minority rights protected – all the REM does is to ensure that each of the three communities takes its turn in the Office over time; it does not guide the way the President wields his power with respect to multiracialism and minority rights. To this end, more could be done in guiding the exercise of the EP’s powers.

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[1] Constitution of the Republic of Singapore (1999 Reprint) Art 19B

[2] The three communities, the “Chinese”, “Malay” and “Indian and others”, are defined in Art 19B(6).

[3] Thomas Fleiner & Lidija R. Basta Fleiner, “The Multicultural State: The Challenge of the Future” in Constitutional Democracy in a Multicultural and Globalised World (K L Roy Trans) (Germany: Springer Berlin Heidelberg, 3rd Rev Ed, 2009), 511–650 at 649, section 8.4.4.3. The successful multicultural Swiss model of power-sharing is analysed in this chapter.

[4] Ibid, at 637–638, section 8.4.2.2.

[5] Speech during the Third Reading of the Parliamentary Elections (Amendment) Bill, Singapore Parliamentary Debates, Official Report (18 May 1988) vol 51 at col 23 (Mr Goh Chok Tong, First Deputy Prime Minister and Minister for Defence). Mr Goh stated that “the GRC proposal … effectively distributes power between leaders of the various communities. In fact, it favours the minorities.”

[6] Speech during the Second Reading of the Presidential Elections (Amendment) Bill, Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94, column numbers not available (Mr Vikram Nair, Sembawang).

[7] Constitutional Commission, Report of the Constitutional Commission 2016 (17 August 2016) at p 87, para 5.15. (Chairman: Chief Justice Sundaresh Menon).

[8]  George Gerapetritis, “Introduction” in Mortimer Sellers & James Maxeiner, Affirmative Action Policies and Judicial Review Worldwide (Athens, Greece: Springer International Publishing, 2016), 1–9 at 2. The legitimacy of affirmative action lies in the very fact that “one cannot place at the same starting point people who have been treated differently in the past”.

[9] Chan Sek Keong, Multiculturalism in Singapore (2013) 25 SAcLJ at p 108, [45].

[10] Constitution of the Republic of Singapore (1999 Reprint) Art 19B(6).

[11] Agaptus Nwozor “Power Rotation, Ethnic Politics and the Challenges of Democratization in Contemporary Nigeria” African Study Monographs 2014; 35(1): 1–18, at 2. “The [Peoples Democratic Party] in 1999 designed the zoning formula to give all the six geopolitical zones of the country a chance to have a shot at the presidency. Each zone was expected to enjoy a four-year term in the presidency after which the race would be thrown open.”

[12] Ibid, at p 8, 10 and 13.

[13] Presidential Elections Act (Cap 240A).

[14] Ibid, ss 8E and 8F.

[15] Ibid, ss 5A, 8G and 8H.

[16] Speech during the Second Reading of the Presidential Elections (Amendment) Bill, Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94, column numbers not available (Mr Vikram Nair, Sembawang).

[17] Ibid, column numbers not available (Mr Chan Chun Sing, Minister, Prime Minister's Office).

[18] Tibor Varady, “Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav Case” Human Rights Quarterly 1997; 19(1): 9–54, at p 22, under the heading “Decline of Minority Rights Praeter or Contra Legem”.

[19] In the same vein as then-Prime Minister Lee Kuan Yew; Zuraidah Ibrahim and Irene Ng, “Good to rotate EP among races”, The Straits Times (11 August 1999) at p 27.

[20] George Gerapetritis, “Introduction” in Mortimer Sellers & James Maxeiner, Affirmative Action Policies and Judicial Review Worldwide (Athens, Greece: Springer International Publishing, 2016), 1–9 at 4.

[21] George Gerapetritis, “The Moral Question: Interacting with Traditional Values” in Mortimer Sellers & James Maxeiner, Affirmative Action Policies and Judicial Review Worldwide (Athens, Greece: Springer International Publishing, 2016), 11–40 at 14.

[22] Constitution of the Republic of Singapore (1999 Reprint) Art 12.

[23] Constitution of the Republic of Singapore (1999 Reprint) Art 19.

[24] George Gerapetritis, “The Moral Question: Interacting with Traditional Values” in Mortimer Sellers & James Maxeiner, Affirmative Action Policies and Judicial Review Worldwide (Athens, Greece: Springer International Publishing, 2016), 11–40 at 13.

[25] A reserved election is only called where a particular community has not been represented in the Presidential Office at least once within the past five terms of the EP.

[26] The assumption is that the electorate has reached a post-racial state of voting when a minority candidate is elected without the need of any quota or affirmative action.

[27] Constitution of the Republic of Singapore (1999 Reprint) Art 39A.

[28] Ibid, Art 68–92. In particular, see Art 68 and Art 78.

[29] Ibid, Art 12, 15 and 152. See also Chan Sek Keong, Multiculturalism in Singapore (2013) 25 SAcLJ at p 98, [29].

[30] For instance, Art 15 was instrumental in the case of Vijaya Kumar s/o Rajendran v AG [2015] SGHC 244, which had to do with the constitutionality of a police permit that prohibited the applicants from playing “music, gongs, drums or music producing equipment such as portable radio and cassette recorder” during their Thaipusam procession, and the playing of certain drums were integral to the religion of the applicants.

[31] Kenneth Paul Tan, “How Singapore is fixing its meritocracy” The Washington Post (16 April 2016) < https://www.washingtonpost.com/news/in-theory/wp/2016/04/16/how-singapore-is-fixing-its-meritocracy/?postshare=7911460932318734&tid=ss_fb&utm_term=.ee978c40fe0f> (accessed 24 February 2017).

[32] Refer to the detailed explanation of written submissions in the Constitutional Commission, Report of the Constitutional Commission 2016 (17 August 2016) at pp 84–85, paras 5.10 and 5.11. (Chairman: Chief Justice Sundaresh Menon). It was submitted that “a portion of voters will feel a greater affinity to someone who is racially similar to themselves”.

[33] See also part III C (2) of this paper.

[34] See also part III C (2) of this paper.

[35] Presidential Elections Act (Cap 240A) s 8E(2).

[36] See generally Thio Li-ann, “(S)electing the President of Singapore – Diluting Democracy?” (2007) 5 Int’l J Const L 526.

[37] Presidential Elections Act (Cap 240A) s 8G(4)(b).

[38] When asked, Minister Chan Chun Sing only clarified that “this [method of assessing race] is not new; it has worked well in the GRC context.” Speech during the Second Reading of the Presidential Elections (Amendment) Bill, Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94, column numbers not available (Mr Chan Chun Sing, Minister, Prime Minister's Office).

[39] This idea of engaging a Community Committee is similar to the Committee established for the purpose of the GRC system, found in Art 39A(2)(b).

[40] Chua Beng Huat, Taking Group Rights Seriously: Multiracialism in Singapore (Australia: Murdoch University Asia Research Centre, 2005), 1–25 at 4–5. These groupings are also like those found in Art 39A, regarding the GRCs, and section 27A of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed).

[41] Ibid, at 6.

[42] The Indian and others communities have increased from 8.6% and 2.3% of the entire population in 2006 to 9.1% and 3.2% in 2016 respectively. Population Trends 2016 < http://www.singstat.gov.sg/docs/default-source/default-document-library/publications/publications_and_papers/population_and_population_structure/population2016.pdf> (accessed 1 March 2017).

[43] Shaw v Reno 509 U.S. 630 at 648 (1993). The US case had to do with whether a congressional redistricting plan in North Carolina, which had the effect of segregating races for purposes of voting, offended the equality of representation. It was mentioned that “when a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.”

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Commentary on the Singapore High Court case of Ezion Holdings and Shareholder Access to Company Financials

The PDF version of this article is available here.

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Commentary on the Singapore High Court case of Ezion Holdings and Shareholder Access to Company Financials

Vedam Rakesh

I. BACKGROUND

This case concerns the right of a shareholder of a company to financial information if the company has been dilatory in holding meetings.

The Plaintiff, Ezion Holdings Ltd., had previously owned the Defendant, Teras Cargo Transport Pte Ltd., but had subsequently sold the majority of the shares and become a minority shareholder.¹

The Plaintiff sought an order under s 203 of the Companies Act [the Act]² for the Defendant’s financial statements and accounts for the financial year [FY] ending in 2015, though these had yet to be prepared and audited.

In 2016, the Plaintiff filed an application seeking an order under s 203 of the Act for the Defendant to produce its financial statements and accounts FY 2015, though these had not been prepared or audited.

The last audited accounts had been issued in the FY 2012 and an annual general meeting [AGM] had been held in July 2016, three months after the present application was filed, where the audited accounts and financial statements for FY 2013 were produced to the shareholders and queries were made.³

The issue that arose was how s 203 of the Act should be read and whether the Plaintiff could request for and receive the unaudited financial statements for FY 2015.

II. DECISION

The Court denied the application by the Plaintiff⁴ and held that the Act did not confer a broad right to financial information to a member or shareholder.⁵

The Court found that s 203 of the Act operates in tandem with s 201 of the Act, which deals with AGMs.⁶ Therefore, s 203 did not give a right to general financial information, but rather, the financial information that is to be provided to a member is financial information tied to a general meeting.⁷

The Plaintiff argued for a broader reading of s 203 putting forward several reasons in support.

Argument #1

The Plaintiff argued that on the proper interpretation of s 203, the accounts do not have to be audited and laid, before a right arises to the statements.⁸

This argument was rejected as it ignored the structure of s 203(1), which reads: “A copy of the financial statements...which is duly audited and which (or which but for s 201C) is to be laid before the company.”⁹

Argument #2

The Plaintiff argued that the title of the section, which reads “Members of company entitled to financial statements, etc”, supported a broad reading of s 203.¹⁰

However, the Court observed that the title of a section is not determinative of its contents and is only intended to summarise the contents of sections for ease of reference; such titles are thus not always exhaustive or precise.¹¹ It noted that although titles and marginal notes can and have been used in interpretation, according to the Court of Appeal at [41] in Tee Soon Kay v AG,¹² the marginal notes must be taken against the backdrop of the actual language used in the section.

In the present case, the title of the section was only a broad and incomplete summary of the contents of the section. The term “etc” in the title clearly indicated that this section governs many matters, and that the title was not intended to be exhaustive.

Argument #3

The Plaintiff cited Burdeny v K & D Gourmet Baked Foods and Investments Inc [Burdeny]¹³ as authority for the proposition that the Defendant could be ordered to produce the unaudited financial statements to the Plaintiff.

The court found that the wording of the section of the British Columbia Company Act cited was different from s 203 of the Act. Furthermore, the financial statement referred to in Burdeny were statements that had already been prepared and the focus of Burdeny had been on the oppression suffered by the applicant there. Burdeny was therefore distinguished and did not offer strong authority for the Plaintiff’s arguments.¹⁴

Argument #4

The Plaintiff then relied on Article 122(B) of the Articles of Association [AOA] of the Defendant, which required that a copy of every profit and loss account and balance sheet together with the auditor’s report, to be sent to persons entitled to receive notice of an AGM not less than 14 days before the meeting.

The Court held that the AOA of the Defendant could not assist the Plaintiff either, because it was restrained by the same obligations as s 203 of the Act.¹⁵

Argument #5

The Plaintiff also cited the speech made by Mr Ong Teng Koon at the second reading of the Companies (Amendment) Bill [the Bill] on 8 October 2014,¹⁶ where the Member of Parliament had stated that "The third objective of this Bill is to achieve the correct balance between flexibility and transparency…”. The Plaintiff advanced the argument that this comported with a shareholder’s right to access financial information of the company.

The Court held that the speech could not assist in the interpretation of the provision because the it was concerned with other areas of the Bill and not specifically with the member’s right to financial information.¹⁷

The court set out the conditions when a parliamentary speech could be useful in interpreting a provision:

"[where] a Member proposes an amendment which is either accepted or rejected… the Member’s speech could be useful in interpreting the provisions if the amendment were passed, and even if it were not, any accompanying remarks in rejection may cast light on what was eventually enacted."¹⁸

Argument #6

The Plaintiff cited Devlin v Slough Estates Ltd,¹⁹ an English decision, for the proposition that a shareholder has a right to accounts where the articles of association require the preparation and laying of the accounts in compliance of the Act.

The Court observed that in that case, at p502, it was held that the individual shareholder had no personal right to commence an action for any breach of that obligation as the duty was owed by the directors to the company and not to the individual shareholders.²⁰

Argument #7

The Plaintiff also cited Over & Over Ltd v Bonvests Holdings Ltd²¹ and Lim Swee Khiang v Borden Co (Pte) Ltd²² as authorities to support the argument that individual shareholders had a free-standing right to obtain financial information. However, both cases were concerned with the oppression of minority shareholders. Over & Over Ltd v Bonvests Holdings Ltd concerned an action for minority oppression by a plaintiff which had its interests disregarded; similarly, the statement by Chan Sek Keong CJ (as he then was) in Lim Swee Khiang v Borden Co (Pte) Ltd related to the enjoinment of the Courts to examine majority shareholders’ conduct under s 216. As minority oppression under s 216 was not pleaded by the Plaintiff in the present case, the Court found that the aforementioned cases did not apply nor offer strong authority.

II. COMMENTARY

It is now clear that a shareholder of a company does not have a right to obtain financial information of a company. He is only entitled to audited financial records that are presented at AGMs.

The rights that shareholders possess include the right to vote, the right to dividends when it is declared, the right to appoint and remove directors and the right to alter the company’s constitution. The management of the company is left to the directors to handle and the shareholders generally do not get involved in these matters. Since the shareholders do not participate in the management of the company, they do not need an unfettered right to financial information.²³

However, if there have not been any AGMs held, or the AGMs have been postponed, the shareholder is left completely in the dark about the financial situation of the company in which he has invested.

In such a situation, the shareholder is left with a few options.

• First, he can wait for the AGM to be held and hope that the delay (however long) in viewing the audited accounts does not adversely affect him.

• Second, he can - as the court noted in the present case - make an application under s 216 of the Act for Minority Oppression.²⁴

s 216 of the Act gives the court wide discretionary powers under which, if the majority is found to have acted unfairly, the court can direct or prohibit any act or cancel or vary any transaction or resolution under s 216(2)(a),²⁵ as well as regulate the conduct of the affairs of the company in the future under s 216(2)(b).²⁶

Therefore, under s 216, the court could order that the minority shareholders be allowed to view the audited financial records.

However, s 216 of the Act is somewhat of a poisoned chalice. As cases involving requests for shareholder access to financials are prone to recurrence, the only realistic solution is often for one of the parties to exit the company. Shareholders seeking such access would may be daunted by the possibility of an order for them to sell their shares to another should the courts find that they are unable to co-operate. In extreme instances, the Court is also empowered to order the winding-up of the company under s 216(2)(e) of the Act,²⁷ even if the parties had not asked for such a result.

One can thus understand why minority shareholders may be hesitant to make a claim of minority oppression under s 216 of the Act.

In addition, these actions for shareholder access will fail if there are genuine reasons for postponing the AGMs, and the directors have acted fairly, honestly and diligently. In such a scenario, the shareholder has no other route to view the financial records of the company.

So, what does the minority shareholder do then?

A. Should a minority shareholder have a right to financial information?

As observed by the court at [31] in Ezion, “our present statutory regime balances the rights and obligations of a number of different parties, not only those of the shareholders or members, but also the directors and creditors.”²⁸

While an unqualified right to financial information of the company would benefit the shareholders immensely, such a right would probably impose additional burdens on the company and its directors.

B. What is the solution for the Plaintiff in the present case?

In the present case, the Defendant had failed to present the Plaintiff with any financial statements of the company between the years 2012 and 2016 (a duration of 4 years). The former had only called an AGM to present the FY 2013 statements to the shareholders after the Plaintiff initiated its action in court in 2016. To add insult to injury, the Directors of the Defendant were not able to answer queries about the FY 2013 financial statements at their AGM.

One of the points made by the Plaintiff in the present case was that its rights could not be enforced through the relevant agencies as “the failure to hold an AGM only leads to small fines, and nothing more”.²⁹ For instance, if a company fails to hold an AGM, “the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty” according to s 175(4)(a) of the Act.³⁰

A fine of this amount is, unfortunately, hardly a deterrent to a company that is sufficiently motivated to keep its minority shareholders in the dark with regard to financial information and – as observed above – s 216 of the Act presents other difficulties that may dissuade shareholders from raising actions for Minority Oppression.

While it is agreed that an unqualified right to information should not be given to shareholders, under the present state of affairs the shareholder is left at the mercy of the company with regard to financial information.

It is humbly submitted that minority shareholders require another avenue to gain access to the financial information of the company.

One possible suggestion is that an amendment could be made to the Act, giving the shareholders a fettered right to check the financial records of the company if an AGM has not been called within the time limit stipulated in the Act, and a reasonable period of time has passed.

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[1] Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd [2016] SGHC 175; [2016] 5 SLR 226 [Ezion] at [2].

[2] Cap 50, 2006 Rev Ed.

[3] Supra note 1, at [3].

[4] Supra note 1 at [11].

[5] Ibid at [12].

[6] Ibid at [15].

[7] Ibid at [16].

[8] Ibid at [17].

[9] Ibid.

[10] Ibid at [17].

[11] Ibid at [18].

[12] [2007] 3 SLR(R) 133 at [41].

[13] [1999] BCJ No 953.

[14] Supra note 1 at [24].

[15] Ibid at [25].

[16] Parliamentary Debates Singapore: Official Report, vol 92 at col 14 (8 October 2014) (Ong Teng Koon, Member of Parliament, Sembawang).

[17] Supra note 1 at [27].

[18] Ibid at [28].

[19] [1983] BCLC 497.

[20] Supra note 1 at [26].

[21] [2010] 2 SLR 776.

[22] [2006] 4 SLR(R) 745.

[23] Ibid at [19].

[24] Supra note 2, s 216.

[25] Ibid, s 216(2)(a).

[26] Ibid, s 216(2)(b).

[27] Ibid, s216(2)(e).

[28] Supra note 1 at [31].

[29] Ibid at [9].

[30] Supra note 2, s 175(4)(a).

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First Steps Towards a Gender-Neutral Maintenance Obligation

The PDF version of this entry can be found here.

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First Steps Towards a Gender-Neutral Maintenance Obligation

Siew Jey Ren

I. INTRODUCTION

Recent amendments made to the Women’s Charter¹ have extended the possibility of obtaining maintenance to incapacitated husbands who are able to prove their need. This article will discuss the significance of these changes and the arguments raised against full gender neutrality in our maintenance provisions.

II. THE WOMEN’S CHARTER (AMENDMENT) ACT 2016

A. Differences in attitudes towards maintenance of spouses and maintenance of children

The unilateral character of the maintenance obligation provided for in s 69 and s 113 of the Women’s Charter is an aspect of the law that has persisted through changes from fault-based divorce to fault-neutral divorce.² Prior to the 2016 legislative amendments, it has never been possible for husbands to apply for maintenance from their wives. It has been suggested that the practice of placing the maintenance obligation solely upon the husband was inherited from the common law as quid pro quo for the historical rule that a married woman relinquished her personal property rights.³ Although this rule is no longer part of our law, the Singapore Legislature has been reluctant to transform the maintenance obligation into one that is mutual and gender-neutral. The relevance of gender is unique to the duty between spouses inter se; the duty of spouses to maintain their children does not differentiate on this basis and is equally applicable to both mother and father.⁴ No one doubts that parents, regardless of gender, have a responsibility to support their dependent children.

The position vis-à-vis maintenance of children appears more consistent with the aspirational ideal of marriage as an equal cooperative partnership espoused under s 46 of the Women’s Charter. In contrast, controversy has resurfaced each time proposals seeking to abolish gender as a differentia in spousal maintenance were raised. For instance, during the second reading of the Women’s Charter (Amendment) Bill,⁵ the Minister for Social and Family Development, Mr Tan Chuan-Jin, cited feedback received during the public consultation that gender neutrality in maintenance would be inappropriate in a society where men are expected to be the primary breadwinners.⁶ The Minister took great pains to stress that this was by and large the case, and that it reflected economic reality. Similar views were aired during the round of amendments in 1996⁷ with the caveat that further developments would be possible in the future where the disparity between men and women was less marked.⁸

That we should speak of ‘parent’ rather than ‘father’ and ‘mother’ but insist on ‘husband’ and ‘wife’ instead of ‘spouse’ speaks to differing societal attitudes as well as the differences between maintenance during the subsistence of a marriage and post-divorce. While maintenance during the subsistence of a marriage for both dependent spouse and child is primarily concerned with the modest goal of meeting financial needs,⁹ maintenance of an ex-spouse serves the more ambitious objective of giving her a fair share of the wealth acquired over the course of the marriage.¹⁰ It would appear from public feedback that resistance was not merely directed towards the expansion of the category of persons who could be compelled to provide maintenance, but also the provision of maintenance to a wider class of recipients.¹¹ Association with notions of dependency and need would be particularly damaging to the perception of the male as the breadwinner and head of the household in the context of post-divorce alimony, given its suggested aim of compensating for economic prejudice suffered during the marriage.

Several related concepts of dependency are also at play. It has been pointed out that certain types of dependency are developmental and biological in nature, with the result that they are universally experienced at some point in our lives.¹² Children and many of those advanced in age are dependent in this sense, as well as those who become incapacitated as adults. There is also a distinct type of dependency that is structural in nature; this has been characterised as ‘derivative’.¹³ This concept recognises the reality that those who are assigned the role of caring for others are themselves dependent upon resources to undertake that care. Derivative dependency and its associated caretaking role are not universally experienced but assigned to certain members of society through a confluence of cultural and legal factors. To the extent that full gender neutrality in our maintenance provisions is perceived as recognition of a broader latitude for assuming derivative dependency, a degree of cultural resistance must be expected. However, the compromise of allowing a small subset of incapacitated former husbands to apply for maintenance represents a calibrated step in the right direction insofar as it confines the expansion to those who can prove their dependency falls within the former type. For this reason, it should not be perceived as a threat to existing gender roles.

B. The argument that wide economic disparities still exist between women and men

One common argument raised against gender neutrality in our maintenance provisions is that significant economic disparities persist between women and men, as signalled by gaps in labour force participation rates and other socio-economic markers.¹⁴ Taking the factor of normative attitudes out of the equation, this argument essentially hinges on using gender as a reliable proxy for need. It is uncontroversial that maintenance under the Women’s Charter is contingent on a host of circumstances including the need for maintenance and the capacity to provide for it.¹⁵ Where provisions in force direct the courts to have regard to fact-specific elements, it becomes both unnecessary and illogical to fashion gender as an additional requirement in deserving cases.¹⁶ Even if it is conceded that gender may serve as an accurate proxy for need, the existence of a general observation does not require all non-incapacitated men to be excluded,¹⁷ nor does allowing the claims of dependent men in any way defeat the claims of dependent women.¹⁸

C. The argument based on social values

In ATE v ATD,¹⁹ the Singapore Court of Appeal observed that a husband should not be regarded as a general insurer vis-à-vis his wife through the award of nominal maintenance as a matter of course. Faced with the occasional factual matrix where the wife earned more than the husband, the courts have readily held that maintenance cannot be considered an unalloyed right. There has been judicial recognition of the potential reverse discrimination against women engendered by ‘patronising gestures’ of token protection.²⁰ In general, it has become rightfully more acceptable to recognise women outside the dependent role, but there remains a lack of progress on the legislative front in recognising men within the dependent role.²¹ Apart from the questionable desirability of traditional gender roles, it is disingenuous to argue that retaining differential treatment de jure is an effective way of promoting preferred social values relating to the financial responsibilities of husbands and the economic dependency of wives given that maintenance is not awarded on the blanket basis of social characteristics, but contingent on multiple factors independent of gender.²²

D. The argument that an additional burden will be placed on wives of incapacitated husbands

A third issue that was directly addressed by the Minister for Social and Family Development concerns the potential imposition of a long term burden on former wives of incapacitated men.²³ It was pointed out that monetary difficulties could be exacerbated by the presence of young children, and that long term support might disadvantage the former wife in entering future relationships.²⁴ Beyond the strict criteria that must be met before a husband or ex-husband may apply for maintenance,²⁵ the courts’ consideration of case-specific circumstances such as earning capacity and need would largely minimise the occurrence of situations in which maintenance obligations result in financial difficulty. The implementation of supportive measures and a referral protocol between the Social Service Offices and the Community Justice Centre²⁶ to assist dependents and defaulters who are genuinely unable to keep up with maintenance payments is a further step towards preserving the welfare of families post-divorce.

III. CONCLUSION

Legal suppositions that defy marital reality recall the famous words of Charles Dickens in Oliver Twist, “the law is an ass … the law is a bachelor”. Recognising the need for the law to be in step with evolving mores and attitudes towards marriage, the 2016 amendments made to the Women’s Charter strive to strike a delicate balance on an emotive issue strongly felt about by many Singaporeans. Legislation, as was rightly pointed out by the Minister, is only part of an entire effort, and the push for symbolic change should not ignore the sensitivities involved and the need to be effective and relevant. Nevertheless, it is to be hoped that the day will arrive when the idea of gender neutrality ceases to attract controversy, and parity is achieved in line with the broader principles of the Women’s Charter.

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[1] (Cap 353, 2009 Rev Ed Sing), as amended by Women’s Charter (Amendment) Act 2016 (No 7 of 2016).

[2] This follows from the Women’s Charter (Amendment) Act 1980 (No 26 of 1980), which substituted the fault principle with the modern principle of proof of an irretrievable breakdown of marriage.

[3] Leong Wai Kum, “Fifty Years and More of the Women’s Charter of Singapore” (2008) 1 SJLS 1 at 22-23.

[4] As provided for by ss 68 and 69(2) of the Women’s Charter.

[5] (No 6 of 2016).

[6] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Mr Tan Chuan-Jin).

[7] In the form of the Women’s Charter (Amendment) Act 1996 (No 30 of 1996).

[8] Parliamentary Debates Singapore: Official Report, vol 66 at col 520-528 (27 August 1996) (Mr Abdullah Tarmugi).

[9] Leong Wai Kum, Elements of Family Law in Singapore (Singapore: LexisNexis, 2007) at 476.

[10] Ibid.

[11] Supra note 6.

[12] Martha Albertson Fineman, “Women, Marriage and Motherhood in the United States: Allocating Responsibility in a Changing World” (2011) 1 SJLS 1 at 4.

[13] Ibid.

[14] In 2016, there was a 15.8 percentage point difference in labour force participation rate and a wage gap of $438 in median gross monthly income based on gender. Ministry of Social and Family Development, Data Tables: Gender, online: <https://www.msf.gov.sg/research-and-data/Research-and-Data-Series/Pages/Data-Tables-Gender.aspx>. 

[15] As provided for by ss 69(4) and 114(1) of the Women’s Charter.

[16] The discussion of the US Supreme Court case of Orr v Orr 440 US 268 (1979) in Kelvin Low, Kelry Loi & Serene Wee, “Towards a Maintenance of Equality (Part I): A Study of the Constitutionality of Maintenance Provisions that Sexually Discriminate” (1998) 19 SingLRev 45 at 58-59 is instructive.

[17] Leong Wai Kum, “The Next Fifty Years of the Women’s Charter—Ripples of Change” (2011) 1 SJLS 152 at 170.

[18] Supra note 16 at 59.

[19] [2016] SGCA 2.

[20] ADB v ADC [2014] SGHC 76 at [11].

[21] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Mr Seah Kian Peng).

[22] Supra note 16 at 58.

[23] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Dr Lily Neo).

[24] Ibid.

[25] As provided by the definition of “incapacitated husband” and “incapacitated former husband” under s 2 of the Women’s Charter. During the second reading of the Women’s Charter (Amendment) Bill 2016, the Minister for Social and Family Development also gave some examples of husbands and ex-husbands who would not qualify: (i) an incapacitated husband or ex-husband who is able to earn a livelihood sufficient to maintain himself; (ii) an incapacitated husband or ex-husband who has other means, such as income from investments or insurance pay-outs, to support himself; and (iii) an ex-husband who becomes incapacitated after the divorce has been finalised.  

[26] Ministry of Social and Family Development, Maintenance Support, online: <https://www.msf.gov.sg/policies/Marriages/Divorce-and-Child-Custody/Pages/Getting-a-Divorce.aspx>.

Ill Advice or Ill-advised? Negligent Medical Advice and the Modified Montgomery Test

A PDF version of this entry is available for download here.

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Ill Advice or Ill-advised? Negligent Medical Advice and the Modified Montgomery Test

Tan Wei Ming

I. INTRODUCTION

When is a doctor liable for giving a patient negligent medical advice? In the case of Hii Chii Kok v Ooi Peng Jin London Lucien [Hii Chii Kok],¹ the Court of Appeal departed from established case law and created a new test to determine the standard of care a doctor must meet to discharge his duty to the patient he is advising. This article will outline the state of the law regarding negligent medical advice in Singapore, analyse the new three-stage modified Montgomery test and discuss some of its implications on the medical and legal practice.

II. BACKGROUND

As reiterated in Hii Chii Kok, the practice of medicine by doctors comprises of three aspects:²

1. Diagnosis – Establishing what the medical issue is.
2. Advice – Providing the patient relevant and material information about recommended courses of action, alternative treatments and the potential risk.
3. Treatment – Carrying out “that which the patient has agreed should be carried out”; this may, for example, refer to surgery as well as relevant pre- and post-operative treatment.³

Prior to the ruling in Hii Chii Kok, the leading local authority on the applicable standard of care expected of medical professionals was Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy].⁴ It accepted and applied the longstanding Bolam-Bolitho test to all three aspects of medical practice.⁵ The Bolam-Bolitho test comprises of two stages – the Bolam test and the Bolitho addendum.

According to the Bolam test, laid down in the case of Bolam v Friern Hospital Management Committee [Bolam],⁶ the standard of care expected of a professional practicing a special skill is that of an “ordinary skilled man exercising and professing to have that special skill.”⁷ In medical negligence, the court assesses whether the doctor “acted in accordance with a practice accepted as proper by a responsible body medical men skilled in that particular art.”⁸ The presence of a body of opinion that takes a contrary view will not result in liability. Thus, even if the body of opinion that accepts the specific practice is in the minority, the doctor will not be found liable so long as they made use of a reasonable practice.

The test was developed in recognition of the fact that the courts are generally not well-placed to settle medical controversies. Given the diversity of reasonable views that may be held on a particular medical issue, it may be unfair for the courts to find a doctor liable for holding that view even if the view is subsequently found to be wrong. On the other hand, not every view can be found acceptable by the Court. Consequently, for a doctor to meet the standard of care and show that an ordinary skilled member of his profession would have acted in the same way, the test only requires that the doctor show that some other doctors would have acted in the same way.⁹

The Bolam test was later supplemented by the Bolitho addendum in the case of Bolitho v City & Hackney Health Authority [Bolitho].¹⁰ The addendum requires the expert medical opinion to pass a threshold test of logic; it is met if the medical experts who gave testimony have compared the risks and benefits and come to a defensible conclusion that fulfils a threshold of logic and consistency.

While the test was initially only applicable to diagnosis and treatment, it was subsequently extended to the disclosure of medical risks by the Court in Sidaway v Bethlem Royal Hospital Governors [Sidaway].¹¹ The majority ruled that a decision to omit disclosing risks of medical treatment is, like treatment and diagnosis, an exercise of professional skill and judgement and should be determined through the Bolam test.

However, the blanket application of the Bolam-Bolitho test to all aspects of medical treatment was a controversial decision for its promotion of medical paternalism.

Notably, the UK Supreme Court, in the case of Montgomery v Lanarkshire Health Board [Montgomery],¹² introduced a new test that overruled Sidaway’s application of the Bolam-Bolitho test in the context of medical advice. A doctor must disclose material risks as well as reasonable alternatives to the recommended treatment. Material risks are defined as those which a reasonable person in the patient’s position would likely find significant, or that the doctor should reasonably aware that the patient would find significant.¹³

This change came in reaction to developments in how the medical profession and society viewed the doctor-patient relationship. The Court noted that the General Medical Council viewed the informed involvement of patients as an integral aspect of professionalism in treatment.¹⁴ Another important social development considered by the Court was the recognition of the right to respect of private life by the European Convention on Human Rights. This was deemed by the European Court of Human Rights to give rise to a duty to involve the patient in decisions relating to their treatment.¹⁵

Other jurisdictions such as Australia¹⁶ and Malaysia¹⁷ have also adopted a ‘prudent patient’ approach to risk disclosure.

III. THE MODIFIED MONTGOMERY TEST

In Hii Chii Kok, the Court of Appeal recognised the need to distinguish between the various aspects of medical treatment to align the law with societal developments. While the Court recognised the difficulty in rigidly distinguishing between the three aspects of medical practice, it stated that it would be artificial to treat them as monolithic and capable of being assessed with reference to a single test.¹⁸

The Bolam-Bolitho test was retained for diagnosis and treatment. Here, the patient is a passive participant that provides information and received treatment in accordance with the directions of the doctor.¹⁹ The test is suited for these aspects as it recognises that doctors possess expert knowledge on medical matters. A doctor is ultimately in charge of making the diagnosis and treatment. The acts of diagnosing illness and providing treatment are considered to be an exercise of professional skill and judgment. This is because a wide variety of factors – advancing medical knowledge, the doctor’s personal experience and patient-specific information – may lead to disagreements over the appropriate result or treatment. In such situations, it may be reasonable for a doctor to recommend a particular diagnosis or treatment. As previously mentioned, it is not appropriate for the Court to attempt to settle medical controversies and decide that one particular view is correct. The better approach in determining whether a doctor meets the professional standard of care, as seen in the continued application of the Bolam-Bolitho test for diagnosis and treatment, is to examine whether their professional judgment was supported by a responsible body of opinion.

However, the Court recognised that in the context of medical advice, both the medical profession and society in general now perceive patients as active participants engaged in a dialogue with their doctors. Unlike the aspects of diagnosis and treatment, where the doctor is in charge, the decision to undergo treatment is ultimately made by the patient. As their decision can be informed by circumstances, objectives and values beyond purely medical considerations,²⁰ the patient must have all the information they would reasonably require to make such decisions.

Referencing the reasoning in Montgomery, the Court noted that similar developments had occurred in the perception of medical advice by the medical industry and public. It relied on the Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016 Edition) [ECEG] to show this change. The ECEG states that patients are now more knowledgeable about medical issues and want their doctors to provide sufficient information to allow them to make informed decisions.²¹ Consequently, it encourages doctors to respect patient autonomy and facilitate their decision-making by ensuring they are advised of the benefits and risks involved.²² The guidelines were recognised by the Court as an indication of the new perspective that both society and the medical industry have adopted with regard to medical advice. This gave rise to the impetus to adjust the applicable test to better reflect the values of society and the medical industry.

The Bolam-Bolitho test, applied to medical advice, would allow a doctor to withhold information so long as some of his peers would have acted similarly. This conflicts with the patient’s entitlement to make decisions and created the need for a new test to account for the patient’s perspective. For these reasons, the Court departed from the Bolam-Bolitho test as adopted in Gunapathy and established the new patient-centric three stage test to determine whether a doctor meets the applicable standard of care when dispensing medical advice.

At the first stage, the patient must identify the exact nature of the information that he alleges was not given to him and establish why it would be regarded as relevant and material. This assessment is made from the perspective of the patient. The Court stated that information which doctors ought to disclose is information that would be relevant and material to a reasonable patient situated in the particular patient’s position, or information that a doctor knows is important to the particular patient in question.²³

The second stage inquires whether the doctor was in possession of that information.²⁴ If the doctor was not aware of the information, the court returns to the Bolam-Bolitho test to assess whether the doctor was negligent in diagnosis or treatment.²⁵

If the doctor was in possession of the information, the third stage of the test examines the reasons why the doctor chose to withhold the information from the patient. The court will assess whether the doctor’s reasons for withholding the information were justified and consider whether this was a sound judgment, having regard to the standards of a reasonable and competent doctor.²⁶ The burden is on the doctor to justify the non-disclosure and the testimony of medical experts on reasons to withhold information will assume more significance because the decision includes an element of professional judgment.²⁷ Examples of situations where a doctor may be justified in withholding information include a patient waiving their right to receive further information, emergency treatment or exercise of therapeutic privilege by the doctor.²⁸

IV. HII CHII KOK'S MODIFICATIONS TO THE MONTGOMERY TEST

While the Montgomery test and the Modified Montgomery test are broadly similar, there are a number of key differences that distinguish the two.

A. Disclosure of Relevant and Material Information

While the scope of material information under the Modified Montgomery test appears to be great, the Montgomery test and the first stage of the Hii Chii Kok formulation are likely to be substantially similar in practice.

The Hii Chii Kok formulation focuses its discussion of risk along the lines of likelihood and severity. A remote risk with minor consequences is unlikely to be considered material, while a likely risk with severe consequences is likely to be considered material. The Court also stressed that a severe consequence with a very low probability of eventuating may not necessarily need to be disclosed.²⁹

Next, the Hii Chii Kok formulation does not restrict material and relevant information to material risks involved in recommended treatment as well as reasonable alternative treatments.³⁰ Despite this apparent increase in scope under the Hii Chii Kok formulation, it is submitted that the Montgomery test can be interpreted broadly to encompass much of what Singaporean courts would consider material and relevant information.

Referencing the Canadian case of Dickson v Pinder,³¹ the Court in Hii Chii Kok gave several examples of information that would likely be considered material: the doctor’s diagnosis of the patient’s condition, the prognosis of that condition with and without medical treatment, the nature of the proposed medical treatment, the risks associated with the proposed medical treatment and the alternatives to the proposed medical treatment as well as the advantages and risks of those alternatives.³²

These are notably very similar to the characterisation of risk in Montgomery. In the UK, the materiality of a risk is determined by assessing its magnitude, nature, effect upon the life of the patient, importance of the benefit sought by the treatment, the alternatives and risks of alternatives.³³ As a result, it is unlikely that information provided by doctors in the two jurisdictions will drastically differ in practice.

B. Inclusion of Second Stage of Test

The second stage of Hii Chii Kok’s formulation requires that the doctor actually possess the information that the patient alleges was not given.³⁴ Although not expressly provided for in Montgomery, it is submitted that the doctor actually having the information is a logical and implicit requirement. The courts are unlikely to penalise a doctor for failing to advise if the information in question was not available. Nonetheless, the discussion of the second stage in Hii Chii Kok is noteworthy for highlighting that the doctor lacking information primarily a problem of diagnosis and treatment. These are aspects best handled by the Bolam-Bolitho test.

C. Exceptions to Test

In Montgomery, the Court discussed a number of exceptions to the test. A doctor will be entitled to withhold information if its disclosure would be seriously detrimental to the patient’s health and in situations of necessity.³⁵

Hii Chii Kok deliberately avoided closing off the list of exceptions. The Court is only to assess whether the doctor’s conduct was justified in the circumstances. However, the Court indicated that situations involving waiver of the right to receive further information, emergencies and exercises of therapeutic privilege would likely justify a doctor’s conduct.³⁶

V. COMMENTARY

It is submitted that the Hii Chii Kok formulation is a commendable refinement of local law that effectively deals with some of the criticisms levelled at Montgomery. It also presents the possibility of development of the law in a non-medical context.

A. The Modified Montgomery Test and Patient Autonomy

The Modified Montgomery test is an unequivocal recognition of the importance of patient autonomy by the courts. However, while the concept of patient autonomy was the driver of change in both the medical industry and the courts, the court did not explore the content of this concept in great detail.

Future cases will inevitably grapple with the problem of what and how much information is relevant and material to the patient. The answers to these questions may very well be grounded in how patient autonomy comes to be understood in Singapore.

The Court has recently discussed the concept of autonomy in ACB v Thomson Medical Pte Ltd.³⁷ Two main concepts of autonomy were offered. The first places prominence on the patient having the freedom to choose, even if the choice may be considered detrimental or irrational. The second argues that the concept of autonomy should facilitate both the current as well as long term desires of the patient. The focus shifts from the patient having a choice to the patient making a good quality choice that best account for their desires in life as a whole.

These two concepts of autonomy have significant implications on the nature of the standard of care. It may be sufficient for a doctor to provide only enough information for the patient to make a decision about the medical issue at hand. However, a more expansive conception of autonomy may require the doctor to go significantly beyond the current medical issue and consider the long-term well-being of the patient.

It is presently unclear how future courts will resolve the problem of autonomy as it relates to medical advice. This is likely to give rise to some confusion and uncertainty in the short term. Future cases will be invaluable in shedding light on how far doctors should go to respect patient autonomy in a post-Hii Chii Kok Singapore. It may well be that this problem will prove to be more theoretical than real.

B. Defensive Practice

With the present uncertainty over the nature of the doctor’s duty to advise and the removal of the protection that the Bolam-Bolitho test afforded medical practitioners, a principal concern from the shift towards a patient-centric approach is how doctors will react to the change in the law. Montgomery has been questioned for raising the likelihood of defensive practice.³⁸ This refers to doctors advising and undertaking the treatment believed to be legally safe.³⁹ Examples include inundating patients with information to ensure the legal boxes are ticked and to maximise the likelihood of patient comprehension.

However, the doctor is expected to take reasonable care to ensure the patient understands the information. It bears noting that the duty is only that of reasonable care; doctors are not expected to meet unrealistic standards of behaviour by ensuring complete comprehension. Additionally, the doctor must ensure the provision of information is balanced with proper communication of said information such that the patient is able to understand the advice.⁴⁰ The Court also noted that concerns raised in Gunapathy about defensive practice mainly concerned the aspects of diagnosis and treatment rather than the provision of advice.⁴¹

It is submitted that such concerns may be overstated. While there was no legal necessity for a doctor to take the steps laid out in the Modified Montgomery test, the ECEG has already recognised the importance of patient autonomy and encouraged doctors to facilitate informed decisions. The practice of providing sufficient information for patients to make an informed decision is one that doctors should not be unfamiliar with. The Modified Montgomery test should not result in drastic shifts in behaviour to compensate for concerns that the advice is deficient.

C. Increased Litigation

On the flipside, the removal of the protection afforded to doctors by the Bolam-Bolitho test may also lead to an increase in medical litigation, which would drive up medical insurance and healthcare costs. Patients may be more likely to commence litigation if they believe they are more likely to win under the new test.

A useful indicator of the likelihood of increased litigation would be to examine other jurisdictions which have adopted similar tests. While it may be too soon to decide if Montgomery has resulted in a significant increase in litigation in the UK, Australia has not experienced the dreaded flood of litigation in the wake of Rogers v Whitaker. Litigation on disclosure of medical risks has been rare and generally involved factual disagreement over what was disclosed rather than the more contentious issue of whether a risk should have been disclosed.⁴²

The Court in Hii Chii Kok noted that many of the primary drivers of increased litigation, such as contingency fees, are not present in Singapore. It stated that this would ameliorate concerns about the Modified Montgomery test, on its own, opening the floodgates to litigation. Additionally, it rightly noted that a possibility of increased litigation should not shut out legal reform.⁴³ However, it is submitted that the perception of decreased protection of medical practitioners may, rightly or wrongly, still drive litigants to make claims where they might not have done so under Gunapathy. While this may not represent the drastic increase in litigation that the concern was concerned about, a gradual uptick in litigation and by extension, malpractice insurance costs may be an unfortunate result of the new paradigm. This may be exacerbated in the future if the patient-centric approach does in fact result in more successful claims.

D. Impact of Hii Chii Kok on other areas of professional negligence

Looking to the future, it is possible that Hii Chii Kok may lead to development of the law in other areas of professional negligence. While it remains to be seen how the courts in Singapore will react to the principles established in Hii Chii Kok when applied to other professions, there is some precedent to suggest that the scope of the Bolam-Bolitho test may be further circumscribed.

The UK case of O'Hare v Coutts & Co [O’Hare]⁴⁴ recently considered Montgomery’s approach to medical advice while assessing whether an investment advisor was negligent in explaining risks to the defendant bank. The Court ruled that an investment advisor’s duty to communicate the risks and ensure his client understood said risks should be governed by the Montgomery test instead of the Bolam test.⁴⁵ This is because the finance industry does not presently have clear guidelines for investment advisors and their treatment of risk management. Finance industry regulations, analogous to those in the medical industry, also encourage advisors to act in a manner close to the approach prescribed in Montgomery. This led to the Montgomery test being preferred over the Bolam-Bolitho test. While O’Hare does not indicate a wholesale rejection of the Bolam-Bolitho test – an approach rejected in Hii Chii Kok⁴⁶ – it indicates that the scope of the Bolam-Bolitho test may be further eroded in areas of professional negligence where the victim needs to make a decision based on expert advice.

VI. CONCLUSION

While courts are generally slow to depart from established local precedent, the judgment in Hii Chii Kok was a necessary refinement to bring Singaporean law in line with the values of its people. It is a timely reminder that the law, far from being static, is a reflection of the values and beliefs of Singaporeans that must adapt to grapple with the new legal challenges created by a constantly developing society.

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[1] [2017] SGCA 38.

[2] Ibid at [95] – [98].

[3] Ibid at [98].

[4] [2002] 1 SLR(R) 1024.

[5] Supra note 1 at [54].

[6] [1957] 1 WLR 582.

[7] Ibid at 586.

[8] Ibid at 587.

[9] Ibid at [56].

[10] [1998] AC 232.

[11] [1985] AC 871.

[12] [2015] UKSC 11.

[13] Ibid at [87].

[14] Ibid at [78].

[15] Ibid at [80].

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

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

[18] Supra note 1 [2017] SGCA 38 at [90].

[19] Supra note 1 at [96], [98].

[20] Supra note 1 at [117].

[21] Ibid at [118].

[22] Ibid at [118].

[23] Ibid at [132], [137].

[24] Ibid at [147].

[25] Ibid at [147].

[26] Ibid at [148].

[27] Ibid at [149].

[28] Ibid at [150]-[152].

[29] Supra note 1 at [140], [141].

[30] Ibid at [132].

[31] [2010] ABQB 269.

[32] Supra note 1 at [138].

[33] Supra note 12 at [87].

[34] Ibid at [147].

[35] Supra note 12 at [88].

[36] Supra note 1 at [149].

[37] [2017] SGCA 20.

[38] Tracey Elliott, ‘A Break with the Past? Or More of the Same? Montgomery v Lanarkshire Health Board’ (2015) 31 Professional Negligence 190.

[39] Supra note 1 at [84].

[40] Ibid at [154]-[156].

[41] Ibid at [87].

[42] Bismark et al., ‘Legal Disputes over Duties to Disclose Treatment Risks to Patients: A Review of Negligence Claims and Complaints in Australia’, online: (2012) PLoS Med 9(8): e1001283 <https://doi.org/10.1371/journal.pmed.1001283>.

[43] Ibid at [84]-[86].

[44] [2016] EWHC 2224.

[45] Ibid at [199]-[214].

[46] Ibid at [83].

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Good Faith in Contractual Agreements in Singapore

The PDF version of this entry can be found here.

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Good Faith in Contractual Agreements in Singapore

Glen Ting

I. NO IMPLIED DUTY OF GOOD FAITH IN LAW

In Ng Giap Hon v Westcomb Securities Pte Ltd [Ng Giap Hon],¹ the Court of Appeal firmly established that it would not endorse an implied duty of good faith as a matter of law in the context of contractual performance.

The primary reason for the Court’s rejection of the doctrine of good faith in the practical sphere stems from its fear of uncertainty surrounding the theoretical foundations of the doctrine.² The Court perceived the doctrine as a fledgling one in English and Singaporean contract law, and highlighted the relative dearth of case law coupled with an abundance of academic literature which suggest that the doctrine is far from settled.³

As noted in Ng Giap Hon, there is still no consensus on the definition of good faith. One of the proposed definitions is the “excluder thesis” which regards good faith as the exclusion of bad faith.⁴ Other definitions propound that good faith imports concepts like honesty, reasonableness, “fair and open dealing”, and/or “fidelity to the bargain”.⁵ Opponents of the good faith doctrine have cited the uncertainty over the definition of good faith as a reason for rejecting the doctrine so as to preserve predictability for the facilitation of business transactions.

The uncertainty surrounding the doctrine is also evident in other jurisdictions. For instance, the Court has mentioned that “the situation in the Australian context is, at best, ambiguous”.⁶ Even in America – where good faith is established as an implied covenant under the Uniform Commercial Code – there is the view that the doctrine is currently in a state of flux.⁷

Dissidents have also rejected the doctrine for its inconsistency with the widely held perspective of contract as a “vehicle for self-interested exchange” for the individual. This perspective arises from a capitalist view of the world in which contracts are formed solely for the purpose of profit maximisation. The doctrine of good faith is antithetical to such an economic view because it would constrain an individual and require him to consider the interests of the other party.⁸ This criticism of the doctrine of good faith was also recognised by the House of Lords in Walford v Miles [Walford],⁹ where Lord Ackner stated that the duty of good faith is “inherently repugnant to the adversarial position of the parties involved in negotiations” as each party should be entitled to pursue his own interest.¹⁰

II. IS THE DOCTRINE REALLY THAT NOVEL AND UNCERTAIN?

The doctrine of good faith should not be perceived as a novel one as many distinct solutions that have been developed to deal with problems of unfairness are fundamentally built on the concept of good faith. These solutions include well-established contractual principles such as undue influence, promissory estoppel, specific performance and injunction.¹¹ Essentially, the doctrine of good faith has actually long been utilised to deter parties from engaging in bad faith conduct, even though it has not been recognized as a general principle. Indeed, the existence of these tools have led proponents to suggest that the common law is already poised to recognise a general principle of good faith.¹²

This notion is further reinforced by Professor McKendrick who stated that most rules of English contract law “conform with the requirements of good faith and cases which are not dealt with in other systems under the rubric of good faith and fair dealing are analysed and resolved in a different way by the English courts, but the outcome is very often the same.”¹³

With respect to the ongoing debate over the definition of good faith, the lack of consensus should not prevent local courts from recognizing a general principle of good faith. Courts have managed to embrace and apply legal tools similarly imbued with imprecision – such as the concept of “reasonableness” in the law of negligence – without undue difficulty.¹⁴

Seen from this perspective, the content of the good faith doctrine might not be as elusive or uncertain as the courts appear to suggest. After all, the essence of good faith has already been embedded in many long-standing legal principles that have been consistently applied in the practical sphere.

III. FREEDOM TO ADVANCE SELF-INTEREST IS NOT AN ABSOLUTE ONE

One of the main criticisms against recognition of a general duty of good faith is its inconsistency with the advancement of self-interest inherent in contract law. However, cooperation between parties to implement a contract is similarly fundamental in this area of law.¹⁵ It has been established that the utility of contractual agreements for the advancement of self-interest comes attached with the condition that parties should not engage in conduct with bad faith. This is evinced by the necessity for principles such as misrepresentation and undue influence which are primarily developed to mitigate problems of unfairness arising from undesirable conduct. Hence, the advancement of self-interest and the concept of good faith should not be regarded as antithetical to each other as contracting parties would still be entitled to serve their self-interests as long as they do not engage in bad faith conduct and undermine the common purpose of the bargain that they have entered into.

It should also be noted that Lord Ackner’s dictum in Walford¹⁶ regarding the inconsistency of the good faith doctrine with the advancement of self-interest was set in the context of pre-contractual negotiations and not performance of the contract. It has been argued that Lord Ackner’s prohibition of the doctrine does not necessarily extend to the way in which a contract should be performed as it is “important to retain a clear analytical differentiation between contract performance and contract formation”. Pre-contractual good faith should not serve as a basis for the rejection of the general concept of good faith.¹⁷

IV. EXPRESS 'NEGOTIATE IN GOOD FAITH' CLAUSES

Although there is no general good faith duty governing contractual agreements in Singapore, in the recent Court of Appeal case of HSBC Institutional Trust Services Ltd v Toshin Development Singapore Pte Ltd [Toshin], it was stated that an express agreement to “negotiate in good faith” could be enforceable.¹⁸ The Court in Toshin supported its holding by noting that such ‘negotiate in good faith’ clauses are in the public interest as they promote the consensual disposition of any potential disputes. The Court then went on to elaborate that such good faith provisions are “consistent with our cultural value of promoting consensus whenever possible”.¹⁹ It was also noted in Toshin that the concept of good faith, at its core, encompasses the requirements of honesty and observance of accepted commercial standards of fair dealing.²⁰

It is arguable that the reasons provided in Toshin to render clauses to negotiate in good faith similarly support agreements to perform contracts in good faith. Like the former, obligations to perform contracts honestly and fairly would also go a long way towards preserving consensus and cooperation between the parties. This is ultimately more conducive for public and commercial interests, as opposed to a categorical rejection of the doctrine of good faith. Taking this argument even further, these same reasons also reinforce the argument for an implication of a general good faith obligation in all contracts.²¹ Furthermore, with respect to the English jurisdiction, it has already been noted that “there are signs that the traditional English hostility towards a requirement of good faith might be abating”.²²

V. CONCLUSION

There is substantial impetus for Singapore in recognizing good faith as a general principle in contract law as many major economies such as the USA, China and Japan have already done so. Acknowledgement of the general principle of good faith would help align the local jurisdiction with that of the major economies and render the nation more accessible and commercially attractive to investors.²³

The concept of good faith is coherent with the fundamental objective of contract law which aims to “protect the reasonable expectations of honest men”.²⁴ In order to achieve this purpose, essential virtues such as honesty, rationality and fidelity to the bargain must be upheld. Indeed, it has been stated that it is difficult to see how contracts could be agreed in the absence of mutual trust and sincerity.²⁵ The uncertainty of the doctrine and its alleged inconsistency with fundamental interests protected in contract law should not be overstated. Instead, a thorough re-analysis of the viability and necessity of good faith would be appropriate in light of growing recognition of the role that good faith plays in ensuring that contractual powers are not exercised for improper purposes.²⁶

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[1] [2009] 3 SLR(R) 518; [2009] SGCA 19.

[2] Ibid at [60].

[3] Ibid at [51].

[4] Robert S. Summers, “Good Faith in General Contract Law and the Sales Provisions of the Uniform Commercial Code” (1968) 54:2 Va. L. Rev. 195.

[5] Colin Lew, “A Leap of Good Faith” [2012] 2 SJLS 416 at 418.

[6] Supra note 1 at [56].

[7] Howard O Hunger, “The Growing Uncertainty about Good Faith in American Contract Law” (2004) 20:1 JCL 50; Ng Giap Hon at [57].

[8] Matthew Harper, “The Implied Duty of ‘Good Faith’ in Australian Contract Law” (2004) 11:3 MurUEJL 22.

[9] [1992] 2 AC 128.

[10] Supra note 1 at [55].

[11] Zimmermann & Whitaker, ‘Good Faith in European Contract Law’ (United Kingdom: Cambridge University Press, 2000).

[12] Supra note 5 at p 421.

[13] McKendrick, “Good Faith: A Matter of Principle” in Forte, A.D.M., ed, Good Faith in Contract and Property (Oxford and Portland, Oregon, 1999) at 41.

[14] Supra note 5 at p 419.

[15] HSBC Institutional Trust Services Ltd v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738 at [39].

[16] Supra note 8.

[17] V Sims, “Good Faith in English Contract Law: Of Triggers and Concentric Circles” (2004) 1:2 Ankara L.Rev. (Winter) 213 at 217.

[18] [2012] 4 SLR 738; [2012] SGCA 48 at [40], [42].

[19] Ibid at [41].

[20] Ibid at [45].

[21] Supra note 5 at p 439.

[22] Ewan McKendrick, Contract Law, 7th Ed (United Kingdom: Oxford University Press, 2016) at p 265.

[23] Lee Shen Yang, “A Look at ‘Good Faith’ in the Common Law” [unpublished, archived at CJ Koh Law Library] at p 12.

[24] Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] SGHC 71 at [151].

[25] Supra note 5 at p 440.

[26] Ibid at p 440.

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An Analysis of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson Medical Pte Ltd

The PDF version of this entry can be found here.

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An Analysis of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson Medical Pte Ltd

Suresh Viswanath

I. INTRODUCTION

In the recent case of ACB v Thomson Medical Pte Ltd [ACB]¹, the Singapore Court of Appeal recognised a new head of damages for parents of children born out of medical negligence – that of “genetic affinity”.² This article seeks to summarise the case for recognising genetic affinity as an actionable head of damages, and discuss some potential objections to this recognition.

II. BACKGROUND

A. Facts

The appellant underwent an in-vitro fertilisation (“IVF”) procedure and delivered a daughter (“Baby P”). Baby P’s skin colour was noticeably different from that of her parents. It was subsequently discovered that the appellant’s ovum had been fertilised with sperm from an unknown third party, instead of sperm from her husband. The appellant brought a suit in the tort of negligence and for breach of contract, and sought damages for, inter alia, the full costs of raising the child (“upkeep costs”).³

B. Decision on upkeep costs and loss of autonomy

The Court of Appeal did not allow recovery of upkeep costs⁴ because:

1. The obligation to maintain one’s child is at the heart of parenthood. Parenthood is a relationship that is intrinsically incapable of valuation, and therefore its obligations cannot be a legally recognised head of damage.⁵
2. It would be inconsistent with the nature of the parent-child relationship; parents’ personal interests as litigants would conflict with their duties as parents since they would be encouraged to show that their child is a “net loss” by exaggerating their infirmities and downplaying any benefits.⁶ A loving parent would therefore receive less in damages than a parent willing to “disparage and reject [his or her] child”.⁷

The court also rejected recovery for “loss of autonomy” because:

1. The concept of “autonomy” is nebulous;⁸ some conceptions of autonomy only take into account an individual’s current desires, some additionally take into account their long-term desires, and others consider the importance of social relations in accounting for “autonomy”.⁹
2. Damages for loss of autonomy would be vindicatory, rather than compensatory; damages could be awarded even if the defendant's act made a plaintiff better off. This would be incoherent with the compensatory concept of damage in the tort of negligence.¹⁰
3. It would be over-inclusive, since any form of damage can “be reconceptualised in terms of a damage to autonomy”.¹¹ This undermines “control mechanisms which keep recovery in the tort of negligence within sensible bounds”.¹²

However, the court was prepared to award damages for loss of “genetic affinity”.¹³ On the facts of ACB, the court quantified this loss as 30% of the full cost of raising Baby P.¹⁴

C. “Genetic affinity”

The court began from the premise that a person’s desire to have a child of their own (with their spouse) is a basic human impulse.¹⁵ In the “ordinary human experience”, parents and children are related by blood and share physical traits.¹⁶

Such blood relations are often significant to parents for several reasons. Firstly, parents may want children who are the literal physical manifestation of their parental union.¹⁷ Secondly, common traits may, for some, play a part in forging an emotional bond between parent and child.¹⁸ Thirdly, shared ancestry and genetic continuity can be important to religious and cultural belonging¹⁹ – for instance, there are often adverse social implications when a child has a different skin tone from their parents.²⁰ These interests can be collectively referred to as “genetic affinity”.

The court was clear that it was not making a prescriptive definition of what a family should be or denigrating adoption.²¹ However, since the vast majority of people are biologically related to their families, there is a widely shared social construction of what a family is. Despite the fact that participation in different socially constructed units (families that do not share physical traits) may be rewarding, it might not provide the experience of blood relations that many people seek and value.²² People who undergo IVF treatment often do so at great difficulty and expense due to a conscious desire go through this “ordinary” experience of parenthood. In the court’s view, being denied this experience due to others’ negligence constituted a profound loss.²³

III. DISCUSSION ON GENETIC AFFINITY

This author submits that the court’s decision on genetic affinity is to be welcomed for pinpointing the true loss suffered by the appellant, in the process recognising a head of loss unprecedented in any jurisdiction. This enabled the court to avoid an outcome which “most non-lawyers would doubtless find rather surprising”²⁴ without having to ignore the concerns raised here and elsewhere²⁵ regarding an award for upkeep costs or loss of autonomy. However, some objections have been raised²⁶ as regards the recognition of an interest in genetic affinity.²⁷ This section seeks to discuss these objections and highlight possible responses to them.

A. Issues related to discrimination

Firstly, it could be argued that an interest in “affinity” is inherently discriminatory. Although parents might possess an interest in having children with whom they share traits, the kind of traits they value often include things like physical appearance (such as skin colour). These are the very traits that modern society regards as illegitimate grounds for discrimination.²⁸

This problem can be dealt with by drawing a distinction between discrimination in the public sphere and discrimination in private decisions about kinship and reproduction.²⁹ The former usually has no legitimate purpose, and is motivated either by hostility to people who possess certain traits, or mistakenly uses these traits as a proxy for other qualities. On the other hand, choices motivated by affinity tend to emphasise symbolic traits which are significant due to their role in personal and social identity. They are not motivated by hostility towards people who do or do not possess such traits; rather, they merely celebrate characteristics that reinforce a sense of group identity. Neither are they proxies for any quality apart from membership of that group.³⁰ Therefore, discrimination in decisions related to offspring appear not to be illegitimate in the way that discrimination is in the public sphere.

B. The importance of genes

A second argument questions the significance of genes in determining traits. Recognition of affinity as an actionable form of damage is premised on the idea that genes do, in fact, determine traits – however, some scientists have opined that the role of genes in determining traits is exaggerated and frequently misunderstood (this is essentially the age-old “nature vs nurture” debate).³¹

Nevertheless, even the strongest critics of genetic determinism concede that genes do play some role in determining personal identity, however small this may be. This is especially so for aesthetic traits, which are usually the ones emphasised by parents with an interest in affinity.³²

It is also important to be clear that damages for affinity are not being awarded on the basis that one set of genes are somehow “less desirable” than another – rather, they are being awarded because the genes of the child are not similar to those of the parents.³³

This is especially relevant in cases where a parent is having a child with a donated egg or sperm, rather than with one from their own spouse. In such cases, parents’ genetic choices sometimes stem not from a desire to have a child in their own image through common symbolic traits (affinity interests), but from a desire to impart functionally desirable traits to their children (eugenic interests). For example, the practise of advertising for egg donors in prestigious universities suggests that some parents seek children of high intelligence.³⁴ If a parent seeks to impart in their children traits which they themselves lack, they are motivated by eugenic rather than affinity interests – their claim should not be allowed.

In any case, a claim for affinity seems unlikely to succeed in cases involving donated sperms or eggs, even where a mix-up affects symbolic rather than functional traits. In the Northern Ireland Court of Appeal decision of A and B by C (their mother and next friend) v A – Health and Social Services Trust (“A and B”)³⁵, a mix-up in donated sperms caused the appellants (the children) to be born with a different skin colour from their parents.³⁶ The Court of Appeal in ACB agreed with the decision in A and B that a difference in skin colour could not constitute an actionable form of damage.³⁷ It should, however, be noted that this was a case where the children (rather than the parents) brought a suit; genetic affinity, as recognised in ACB, is a parental interest.³⁸ Also, the court in ACB felt that the decision in A and B failed to consider the true harm – the lack of physical resemblance to parents – suffered by the appellants.³⁹

Additionally, it is worth noting that in addition to the mother, her husband (the legal father) could also be eligible for an award for genetic affinity, especially since (unlike the mother) he has no genetic connection with the child.⁴⁰

C. Quantification of damages

Thirdly, there are difficulties with the way the Court of Appeal chose to quantify the damages in ACB by benchmarking them against upkeep costs. The first issue here is that this results in the same policy objections that led to the Court of Appeal rejecting an award for upkeep costs; parents would be incentivised to exaggerate detriments and downplay any benefits gained from their children.⁴¹ The second issue is that benchmarking damages against upkeep costs is arguably incoherent with the nature of the damages being awarded; it is not clear how a percentage of a pecuniary award for upkeep costs takes into account the particular non-pecuniary harms suffered by the appellant due to loss of genetic affinity.⁴²

Quantification of genetic affinity is undoubtedly difficult; the court accepted that its solution was not theoretically elegant, but stated that an elegant solution which attempted to quantify the appellant's actual losses would require it to engage in complex and controversial issues⁴³ (some of which could be racially sensitive⁴⁴). One alternative, proposed by a case comment that raised the above concerns, is to set a uniform award through parliamentary intervention, with the amount determined by consultation and studies.⁴⁵ Being uniform, such an award would not compensate a particular plaintiff for the particular harms suffered. However, the authors of the case comment argue that a loss of genetic affinity is "abstractly incalculable" and that value judgments should not be made that genetic affinity is more important to some parents than others.⁴⁷

D. Harm to children

Additionally, allowing an action for genetic affinity may cause psychological harm to a child – the litigation involved may make them feel that their parents do not value them, and that they are less desirable than a child with the parents' own genes.⁴⁸ Similar arguments have been made against an award of upkeep costs both in Singapore and in other jurisdictions.⁴⁹ The High Court of Australia in Cattanach v Melchior⁵⁰ dismissed this argument; it held that in addition to being speculative (the harm caused to the child is uncertain, and children may discover the truth of their birth regardless of any litigation or lack thereof), there are also "many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted”.⁵¹ The court in ACB seemed to agree with the High Court of Australia on this point, giving the concern little weight with regard to upkeep costs.⁵²

IV. CONCLUSION

The facts of ACB were tragic, and the legal issues complex; the case was described by the Court of Appeal as "possibly one of the most difficult" to come before it.⁵³ As unfortunate as the circumstances were, it is probably not the last time that courts will have to deal with such issues, especially given the rising number of people relying on IVF to have children.⁵⁴ In light of this, the decision on genetic affinity is extremely significant as it provides a substantial remedy for parents in cases of wrongful fertilisation.

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[1] [2017] SGCA 20, [2017] 1 SLR 918.

[2] Ibid at [135].

[3] Ibid at [3].

[4] Ibid at [86].

[5] Ibid at [87]–[94].

[6] Ibid at [95].

[7] Ibid at [99].

[8] Ibid at [115].

[9] Ibid at [116]–[118].

[10] Ibid at [120]–[121].

[11] Ibid at [123].

[12] Ibid at [115].

[13] Ibid at [135].

[14] Ibid at [150].

[15] Ibid at [127].

[16] Ibid at [128].

[17] Fred Norton, “Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages” (1999) 74 NYU L Rev 793 at 798.

[18] Supra note 1 at [128].

[19] Ibid at [128].

[20] Ibid at [131].

[21] Ibid at [129].

[22] Ibid at [129].

[23] Ibid at [129].

[24] Margaret Fordham, “An IVF Baby and a Catastrophic Error - Actions for Wrongful Conception and Wrongful Birth Revisited in Singapore” [2015] Sing JLS 232 at 240.

[25] Supra note 1 at [61]–[66].

[26] Supra note 17 at 810–818.

[27] Hairul Hakkim and Kevin Ho Hin Tat, “Genetic affinity as a novel remedy for wrongful fertilisation – a case of assessing the incalculable?”  (9 April 2017), Singapore Law Blog (blog) online: <(http://www.singaporelawblog.sg/blog/article/182>.

[28] Supra note 17 at 810–811.

[29] Ibid at 810.

[30] Ibid at 811.

[31] Ibid at 812–813.

[32] Ibid at 813.

[33] Ibid at 814.

[34] Ibid at 814.

[35] [2011] NICA 28.

[36] Supra note 1 at [132].

[37] Ibid at [133].

[38] Ibid at [135].

[39] Ibid at [133]–[134].

[40] K.C. Vijayan, “New award for loss of genetic affinity a gain for IVF law”, The Straits Times (11 April 2017), online: <http://www.straitstimes.com/opinion/new-award-for-loss-of-genetic-affinity-a-gain-for-ivf-law>.

[41] Supra note 27.

[42] Ibid.

[43] Supra note 1 at [149].

[44] Supra note 27.

[45] Ibid.

[46] Ibid.

[47] Supra note 17 at 816–817.

[48] ACB v Thomson Medical Pte Ltd, [2015] SGHC 9, [2015] 2 SLR 218 at [16].

[49] McFarlane and Another v Tayside Health Board, [1999] UKHL 50, [2000] 2 AC 59 at 69D.

[50] (2003) 199 ALR 131.

[51] Supra note 1 at [77].

[52] Ibid at [83].

[53] Ibid at [210].

[54] Human Fertilisation & Embryology Authority, "Fertility treatment 2014: Trends and figures" (2016) at 49.

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