Internet Regulation—A myth in Singapore?

Internet Regulation — A Myth in Singapore?

Yip Yee Hui Josephine

As with all other freedoms, freedom of speech is not without its limits, a principle deeply enshrined in article 14 of the Singapore Constitution. Racial and political issues remain particularly sensitive, and are thus the key targets of censorship here. However, the rise of the Internet has dramatically narrowed the boundaries of state regulation. While countries such as China and Iran have illustrated that extensive Internet regulation is not impossible with the use of technological measures to filter out undesirable content¹, Singapore has shied away from such an approach, preferring instead to adopt mostly non-technological ones. The question thus remains: with the ineffectiveness of technological measures, and the government’s purported commitment to a light-touch approach, is Internet regulation now little more than a mere myth in Singapore? This article argues that this seems unlikely given the government’s continued attempts to regulate the Internet through new legislation, and the self-regulation by both individual Internet users and the virtual community.

The government’s role in regulating the Internet is largely moderated due to two main reasons. The first is Singapore’s use of mostly non-technological measures. These include both laws specific to online content such as the Internet Code of Practice and the Class License Conditions, and more general ones such as the Films Act and the Sedition Act. Such regulations restrict online content with certain repercussions such as fines should they be contravened. Yet, they are unlikely to have much effect in practical application. Without the heavy use of technological measures, the rapid propagation of information and the sheer volume of content on the Internet have made regulating objectionable content a mind-boggling challenge² for Singapore. When MICA opted to retain its ban of 100 websites in 2010, it was ‘not so much for its functional usefulness, [but] rather as a symbolic statement of our society’s values’. Indeed, Mr Lui Tuck Yew, then Minister for Information, Communications and the Arts, acknowledged at that time that the ban was likely to be largely ineffective as ‘the technologically savvy among us will be able to circumvent this ban, and that there are many more than 100 such websites out there’³. Additionally, the extensive online circulation of the political film Singapore Rebel even before its ban was lifted in 2009 illustrates yet another instance of how state regulation of the Internet is highly limited. By then, the film had already garnered a few hundred thousand views⁴.

Moreover, Singapore’s commitment to a light-touch approach⁵ towards Internet regulation right from the outset has also played a role in limiting state regulation of online content. Since 1996, the Internet Code of Practice has required Internet Content Providers to remove any content that were objectionable on grounds of public morality, order or security, and has called for certain content providers displaying political and religious content to register with MDA. However, the apparent harshness of these regulations was mitigated by the government’s reassurance that it would not attempt to remove all objectionable content but only censor 100 websites as a symbolic move⁶, and that such registration was nothing more than an administrative exercise aimed at improving accountability⁷. Despite these assurances, the regulations were still viewed as an attempt to ‘cover what is essentially an exercise of unchecked power’, and regarded as ‘the spectre of government surveillance and censorship’, according to several adverse comments made on a feedback page set up by the then popular Sintercom⁸. Yet these fears were proven to be largely unfounded. In fact, in the decade after the regulations were first announced, fewer than thirty cases of state action against online content were reported⁹. On hindsight, the government’s continued adherence to the light touch approach hardly seems surprising, given the need to protect Singapore’s reputation as a technological hub¹⁰. Also, this could possibly be the government’s attempt at distancing itself from the label of an authoritarian regime¹¹, a label that is politically costly both locally and internationally.

Even so, Internet regulation remains a reality in Singapore. Despite the limitations of non-technological regulations and the government’s commitment to a light touch approach, it continues to play a key role in monitoring online content. A most apt example to illustrate this point would be the recently enacted legislation governing online news sites which first came into effect on 1st June this year¹². Under these new rules, online news sites must be individually licensed if, over a period of two months, they report an average of at least one article per week on Singapore’s news and current affairs and are visited by at least 50,000 unique IP addresses from Singapore each month.¹³ Such sites will be required to remove objectionable content within 24 hours of being notified by MDA. At first glance, it seems that the new regulations are unlikely to have as much impact on the online community as the 2,500-strong demonstration at Hong Lim Park, or the 24-hour blackout of more than 130 Singapore-based websites¹⁴, would suggest. Despite the fact that MDA’s broad definition of ‘news’ could potentially subject countless websites to the new regulations¹⁵, it is doubtful that the government will take a proactive approach towards enforcing them. After all, the aforementioned motivations for maintaining a light touch approach on Internet regulation seem all the more relevant today, as citizens become increasingly educated and politically aware¹⁶. Indeed, in response to criticisms of the new regulations, Minister for Communications and Information Yaacob Ibrahim stated that “MDA will be ‘judicious’ with Internet regulation”. However, it may well be that having identified 10 websites such as channelnewsasia.com, todayonline.com and sg.news.yahoo.com that fall within the ambit of the new licensing scheme, the government could potentially have a real influence on what is produced on these few sites. The narrow focus on a very small number of websites would significantly reduce the volume of online content to be sieved through, helping the government to overcome one of the main obstacles facing state regulation.

In addition, self-regulation by both individual Internet users and the virtual community also play a role in regulating the Internet. A main driving force behind self-regulation would be auto-regulation¹⁷. In Singapore, terms in legislation pertaining to online content are usually ambiguously or broadly defined such that a vast number of online users could fall under its regulatory jurisdiction¹⁸. For instance, under the Internet Code of Practice, Internet Content Providers must remove any prohibited material if directed to do so by MDA. An Internet Content Provider, as defined under the Class License Conditions,¹⁹ is:

(a) any individual in Singapore who provides any programme, for business, political or religious purposes, on the World Wide Web through the Internet; or (b) any corporation or group of individuals (including any association, business, club, company, society, organisation or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any programme on the World Wide Web through the Internet, and includes any web publisher and any web server administrator;

With such broadly defined rules, the authorities possess expansive discretionary powers to bring offenders to task²⁰. While the Government has unstintingly reiterated its stance of adhering to a light-touch approach, the deterrent effect of such regulations remain as online users have to be constantly wary of infringing upon these rules as they might fall under their jurisdiction. In fact, many online users have likened the recently enacted legislation governing online news sites to the proverbial Sword of Damocles²¹, where a climate of fear is created despite assurances from the Government. Thus, auto-regulation seems to play a significant role in Internet regulation.

Quite apart from auto-regulation, online communities have on several occasions demonstrated an intrinsic propensity to self-regulate. Online comments that undermine Singapore’s social fabric are often lambasted by other users, prompting those who made the comments to remove them even before they are brought to the attention of the authorities. This was evident in the case of Amy Cheong, who made expletive-filled derogatory comments about Malays in a Facebook post²². Her comments were rapidly circulated around cyberspace and incited a flurry of disapproving comments on numerous social media platforms such as Facebook and Twitter²³, causing her to delete her comment shortly after. Similarly, polytechnic student Lai Shimun promptly deleted her Facebook and Twitter accounts after her racist post on Indians was drew flak from the online community²⁴. Such incidents illustrate how even without government intervention, the Internet may still be regulated through self-regulation.

In conclusion, it is apparent that Internet regulation, whether in the form of state intervention or self-regulation, is here to stay. While a balance must be struck between the two, it is unclear if the right balance has indeed been achieved under the status quo. Adverse reactions to the recently enacted licensing framework for news sites seem to suggest otherwise, and cases such as that of Amy Cheong appear to point to an online citizenry that is increasingly mature²⁵, thus paving the way for greater self-regulation. Although the government’s recent enactment of licensing framework indicates that it is not likely to relax its stance in the near future, perhaps there is room for the hope that Singapore will witness a gradual change in the time to come.

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[1] “Iran’s Internet Censorship Most Sophisticated in the World” CircleID (19 Jun 2009), online: CircleID < http://www.circleid.com/posts/20090619_iran_internet_censorship_sophisticated/ >

[2] Peng Hwa Ang & Berlinda Nadarajan, “Censorship and the Internet: a Singapore perspective”, Communications of the ACM, 39:6 (June 1996) 72.

[3] “MICA to retain 100-website ban”, AsiaOne (29 September 2010) online: AsiaOne < http://www.digitalone.com.sg/news/article/13408 >

[4] Teo Xuanwei, “Ban on film lifted” Today (12 September 2009)

[5] Media Development Authority, Internet, online: Media Development Authority < http://www.mda.gov.sg/PUBLIC/MEDIACLASSIFICATION/Pages/Internet.aspx> (accessed 10 October 2013)

[6] Chua Hian Hou, “MDA bans two video-sharing porn sites”, The Straits Times (23 May 2008)

[7] Cherian George, Looking for patterns in 10 years of ‘light touch’ regulation, online: Journalism.sg < http://journalism.sg/2007/08/23/looking-for-patterns-in-10-years-of-light-touch-regulation/>

[8] Cherian George, “Postings on New SBA Rules Flood the Net”, The Straits Times (17 July 1996)

[9]  Supra note 11.

[10] Supra note 11.

[11] Garry Rodan, Transparency and Authoritarian Rule in Southeast Asia: Singapore and Malaysia, (New York, US: Routledge, 2004) at 48

[12] Media Development Authority of Singapore, Press Release, “Fact Sheet- Online news sites to be placed on a more consistent licensing framework” (28 May 2013) online: Media Development Authority of Singapore < http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/Pages/28052013.aspx >

[13] Ibid.

[14] Jeanette Tan, “Singapore bloggers black out sites in protest of MDA licensing scheme”, Yahoo News (6 June 2013) online: Yahoo News <http://sg.news.yahoo.com/singapore-bloggers-black-out-sites-in-protest-of-mda-licensing-scheme-042044959.html>

[15] Andrew Loh, “New MDA licensing rules: Finding a way forward”, Yahoo News (17 June 2013) online: Yahoo News <http://sg.news.yahoo.com/blogs/singaporescene/mda-licensing-rules-finding-way-forward-062335198.html>

[16] Pravin Prakash, “Keeping it civil: How now for political engagement” Commentary, Today (1 June 2013) online: Today < http://www.todayonline.com/commentary/keeping-it-civil-how-now-political-engagement >

[17] Terence Lee, “Internet Control and Auto-regulation in Singapore”, online: (2005) 3:1 Surveillance and Society at 80 <http://www.surveillance-and-society.org/Articles3(1)/singapore.pdf>

[18] Supra note 21 at 81.

[19] Broadcasting (Class License) Notification (Cap 28, N 1, 2004 Rev Ed Sing), n 2.

[20] Supra note 21 at 81.

[21] Supra note 19.

[22] Joyce Lim, “Racist rant: Amy Cheong gets stern warning from police”, The Straits Times (25 March 2013) online: The Straits Times <http://www.straitstimes.com/breaking-news/singapore/story/racist-rant-amy-cheong-gets-stern-warning-police-20130325>.

[23] Jeffrey Oon, “The Amy Cheong saga…fast, furious, unbridled”, Yahoo News (8 October 2012) online: Yahoo News <http://sg.news.yahoo.com/blogs/what-is-buzzing/amy-cheong-vacant-job-posted-career-094026501.html>

[24] Kai Fong, “Expletive online post about Indians hurtful, wrong and uncalled for”, Yahoo News (28 March 2012) online: Yahoo News <http://sg.news.yahoo.com/%E2%80%98expletive-fb-post-about-indians-particularly-hurtful–wrong-and-completely-uncalled-for%E2%80%99.html>

[25] Phua Mei Pin, “A step forward for self-regulation online”, The Straits Times (13 October 2012)

Litigation v Mediation

Litigation v Mediation

Nurmatha

A new phenomenon that is now prevalent worldwide is the rise of alternate dispute resolution methods to litigation. Increasingly, litigation is being seen as a cumbersome process and mediation or arbitration is preferred in resolving legal issues. However, many lawyers still seem to be reluctant to mediate and seem to prefer litigation. This article will offer possible reasons as to why lawyers may prefer litigation to mediation and then put forth an argument as to why mediation is clearly the better choice.

Lawyers may prefer litigation because given that they have been trained in an adversarial way to resolve disputes, arguing a case is something that they feel comfortable with. This is in contrast to mediation, which requires them to be more compromising and is in essence, a more collaborative approach that may be outside their comfort zone.

Another reason that lawyers may choose not to embrace mediation might be because of the lack of publicity involved in mediation. In most cases, disputes solved through litigation are public and in some instances may even be widely reported by the media. This is opposed to mediation, which is highly confidential. Lawyers may thus prefer litigation as the attention that is garnered by a case serves as good publicity for them. Therefore, the public process of litigation has the potential to help a lawyer to attract more clients. In comparison, very few mediation cases receive publicity and thus lawyers who engage in mediation do not receive much recognition. Consequently, lawyers may thus choose not to embrace mediation. Lastly, one of the unavoidable truths is that litigation is better for a lawyer’s financial interest as opposed to mediation. In the Singapore Court of Appeal decision of Lock¹, the parties were involved in a motor accident. The appellant initially filed a claim for $375 but after going to the Primary Dispute Resolution Centre (PDRC), the parties made an agreement that the appellant would receive $187.50 as compensation, costs of $1000 and reasonable disbursements. However, they could not settle on the amount to be disbursed and were in dispute over a difference of $60.35. This case was brought all the way to the Court of Appeal. In their judgment, the judges greatly condemned the behavior of the lawyers who were acting for the two parties in Lock. While the matter in dispute was only $60.35, the lawyers had brought the matter all the way to the highest appellate court, causing their clients to have to pay exorbitant legal fees to them. Litigation is clearly a more financially enticing option as compared to mediation. The aforementioned reasons are some of the possible reasons that lawyers might prefer litigation to mediation. However, these reasons are based on lawyers’ personal and financial interests rather than the interests of society as a whole. For this reason, it is important for lawyers to embrace mediation, which offers many advantages over litigation. If used early enough in a dispute, mediation tends to resolve them much faster, greatly reducing the legal fees involved. This in turn makes the law more affordable and accessible to the general public. Moreover, mediation is a more flexible approach. Through mutual communication and agreement, parties have an opportunity to understand each other’s issues better and come to a compromise that benefits both sides.

Hence, it is important to raise awareness about mediation so that more lawyers can be encouraged to embrace it. Relevant courses can serve to educate lawyers about the benefits of mediation and lawyers’ roles during the entire process. For the benefit of society at large, it is vital that lawyers balance the interests of their clients with their own personal and financial interests and embrace mediation.

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[1] Lock Han Chng Jonathan v Goh Jessiline, [2007] SGCA 56

How substantive is “substantive assistance”?

How Substantive Is “Substantive Assistance”?

Joshua Kow

INTRODUCTION

The prominent case of Yong Vui Kong (hereafter referred to as “Yong”) needs no further introduction in the criminal law fraternity. In 2007, at the impressionable age of 19, Yong was caught in possession of 47.27g of diamorphine (commonly known by its other name, heroin) near the Meritus Mandarin Hotel by Central Narcotics Bureau officers (hereafter referred to as “CNB”). At the time Yong was caught, the punishment in Singapore for unauthorised trafficking of above 15 g of heroin is death¹.

In 2009, Yong was sentenced by Justice Choo Han Teck to suffer death under s 5(1a) of the Misuse of Drugs Act (Cap 185) (hereafter referred to as the “MDA”)². This marked the advent of a series of constitutional challenges, as well as criminal motions and judicial review proceedings in Singapore courts, not limited to, inter alia, two presidential appeals for clemency, a stay of execution in light of human rights lawyer M Ravi’s constitutional challenge of the mandatory death penalty, and a judicial review of the clemency process in 2010³.

THE CERTIFICATE PER SE

On 18 September 2013, the Attorney General’s Chambers (hereafter referred to as the “AGC”) released a media statement⁴ stating that “the Public Prosecutor will certify to the High Court that Subashkaran and Yong had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within and outside Singapore.” This would be in the form of what is known as the “Certificate of Substantive Assistance”, which will be the subject of focus in this article.

Yong and Subashkaran are not the first to receive this certificate under the law⁵. However, they are the first two serving inmates on the death row to be issued the certificate. Since the 2012 Amendments to the Misuse of Drugs Act have a retrospective effect, the Parliament now has the opportunity to reverse the death sentence.

In order to better appreciate the significance of this Certificate and what it entails, we must first look at the relevant portion of the law which provides for its issuance by the Public Prosecutor. This relevant portion is s 33B(1) and (2) of the MDA⁶. In short, s 33B (1) empowers the court with the option of sentencing the convict to imprisonment for life. In order to do so, however, the convict must satisfy two conditions provided in 33B(2), namely:

(a) The person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above;

(b) The Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

[emphasis added]

Out of the two conditions set forth by the section above, Yong has already fulfilled one as the Certificate of Substantive assistance, is a written affirmation by the Public Prosecutor of the requirement set out in s 33B(2). He now needs to prove to the Court, on a balance of probabilities, that his role was merely that of a “drug courier” (i.e. simply transporting, sending, or delivering the heroin), as well as to convince the Court that they should reverse his sentence of death, and substitute it with imprisonment for life with caning. Noting the Prosecution’s indication that they will not seek the death penalty, the latter may be fulfilled more easily.

The possibility of sidestepping the gallows comes as a source of tremendous relief⁷ not only for Yong and his family, but also to his counsel M Ravi, who has already initiated proceedings for re-sentencing on 23rd September 2013 to be heard once more before Justice Choo Han Teck⁸. As of yet, the re-sentencing hearing date remains unconfirmed.

CRITERIA IN ISSUING THE CERTIFICATE

s 33B of the MDA was first introduced via Clause 14 of the Misuse of Drugs (Amendment) Bill (No. 27 of 2012), which sought to “empower the court to impose a life sentence instead of the death sentence in certain circumstances”⁹. In the annexed Explanatory Statement (Pg. 33 onwards), three verbatim statements are of crucial significance:

1. Substantive assistance to the Bureau in disrupting drug trafficking activities may include, for example, the provision of information leading to the arrest or detention or prosecution of any person involved in any drug activity;
2. Any information which does not enhance the effective enforcement of the provisions of the Act will not suffice; and
3. The issue of the certificate will be determined by the Public Prosecutor in his sole discretion.

Interpreting the statements above in a larger context, two points become obvious. Firstly, the fact of whether a convict has rendered “substantive assistance” to the CNB or not depends very much on the information he is able to provide to them. Secondly, the Public Prosecutor is given full, independent control in deciding whether or not to issue the certificate.

THE NATURE OF SUBSTANTIVE ASSISTANCE

Substantive assistance to the CNB in the form of “provision of information leading to the arrest or detention or prosecution” is inherently unfair and possibly onerous to the convict. Drug couriers (i.e. Yong) who satisfy the provisions of s 33B(1) are, for lack of a better phrase, the “lower rungs of the ladder” in the larger hierarchy of the illegal drug trade.

Realistically, it is highly unlikely that couriers would possess such information, either because the leaders of the syndicate have taken steps to restrict the downward flow of such information, or the revelation of such information would endanger their family members (a situation faced by Yong himself¹⁰). After all, such threats are not uncommon, as evidenced by a series of past cases.¹¹ Furthermore, it would be foolhardy to assume that the Police will be able to provide the accused with round-the-clock protection for both themselves and their family members, some of whom may not even be in Singapore. This limits the information made readily available to the CNB, to the detriment of the convict.

In accepting such a requirement, a troubling dilemma arises when two equally culpable convicts of drug trafficking are sentenced to death and life imprisonment respectively, merely because one was able to provide “more substantive” information over the other, a factor which none of the convicts are able to control. What more, if the CNB officer chooses to not recognise or value the convict’s assistance even if he did provide “substantive” aid?

Essentially, the ultimate factor in the sentencing of the convict becomes the economic premise of how “useful” he or she is to the State ¹², a factor determined entirely by chance and the discretion of others, rather than how heinous or morally repulsive the crimes are. That is not to say, however, that “usefulness” is the only factor; moral culpability still remains a key consideration in sentencing, presuming that the convict qualifies first under s 33B.

Arguably, this cannot be fair and just. While providing assistance can and should definitely be considered a mitigating factor in sentencing, it should not remain the only factor considered. Perhaps, other factors (e.g. the willingness of the convict to cooperate in the investigative efforts of the CNB) should also come into play, in consideration of the likelihood of lack of substantive information. In a situation of life or death, substantive assistance alone would not reasonably justify a shift between punishments which are qualitatively and categorically different.

PROSECUTORIAL DISCRETION

Regardless of how substantive a convict’s assistance to the CNB may be, a worrying aspect of this freshly-added MDA section is the full, independent discretion of the Public Prosecutor in the issuance of the certificate itself. Member of Parliament for Aljunied, Ms Sylvia Lim, pointed out that it is “foreseeable that some accused persons may not receive the certificate even if they were willing to provide the CNB with whatever information they had.”¹³

At present, the Public Prosecutor still holds “veto” power over whether the offender faces mandatory death or not. Giving the Public Prosecutor sole discretion in issuing the certificate makes him the “ultimate judge of substantive cooperation” instead¹⁴, a marked departure from what ought to be within the power of an independent judge who is obliged also to give reasons for his decision. In effect, such an amendment would not change the status quo in favour of more transparency or accountability, since the Public Prosecutor’s decision remains unaccountable and opaque. In imposing a death penalty which is mandatory, giving the Public Prosecutor full discretion in issuing the certificate makes it no different from the law prior to amendment.

CONCLUSION

No doubt, the amendments to the MDA are ultimately made in advancement of the CNB’s effectiveness in combating drug abuse, and in good faith. However, the choice of phrasing of s 33B, as well as the inordinate discretion of the Public Prosecutor in this instance, elucidate either an alarming lack of regard for the problems which may ensue therefrom, or an express recognition that these are not problems which matter in the overall equation. Whether the Act can truly achieve its aims in lieu of the observations above remain to be seen in due course.

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The author would like to thank Damien Chng and Priscilla Chia of We Believe in Second Chances for their invaluable assistance and insight, without which this article would not have been possible.

[1] Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing) – SECOND SCHEDULE Offences Punishable on Conviction

[2] Public Prosecutor v Yong Vui Kong [2009] SGHC 4

[3] Cases referred to are, in order of mention:  (1) Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489, [2010] SGCA 20 for constitutional challenge; (2) Yong Vui Kong v Attorney-General [2010] SGHC 235, [2011] 1 SLR 1 for judicial review of clemency process.

[4] http://app.agc.gov.sg/DATA/0/Docs/NewsFiles/AGC%20MEDIA%20STATEMENT_AGC%20TO%20ISSUE%20CERTIFICATES%20OF%20SUBSTANTIVE%20ASSISTANCE_18%20SEPT%202013.pdf – AGC TO ISSUE CERTIFICATES OF SUBSTANTIVE ASSISTANCE

[5] The first being Abdul Halim in Public Prosecutor v Abdul Halim bin Abdul Karim and Anor [2013] SGHC 110.

[6] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[7] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-receives-certificate-of-cooperation – Yong Vui Kong receives Certificate of Cooperation | The Online Citizen

[8] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-happy-for-2nd-chance-m-ravi – Yong Vui Kong happy for 2nd chance: M Ravi | The Online Citizen

[9] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[10] Yong Vui Kong v Public Prosecutor [2012] SGCA 23, [2012] 2 SLR 872,Chan CJ at [8]

[11] Examples of such include: (1) Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156, [2011] SGCA 49, Chan CJ at [6], and (2) Public Prosecutor v Ng Pen Tine and Anor [2009] SGHC 230, Chan Seng Onn J at [16-17]

[12] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [35]

[13] Singapore, Parliament of Singapore, Hansard, 11th Parl, 2nd Sess No 1 (12 November 2012) Ms Sylvia Lim (Aljunied) at [16]

[14] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [26] and [31].

On Legal Harmonisation Within ASEAN

On Legal Harmonisation Within ASEAN

Joanne Wong

While the Association of Southeast Asian Nations (“ASEAN”) has readily embraced the concept of the rule of law, it has been slow to adopt binding legal frameworks to govern the relationships between its members. Instead, it prefers to operate on the basis of ad hoc understandings and informal agreements. This “ASEAN Way” of musyawarah (consultation) and musfakat (consensus), as contrasted against the formal legalism of most Western international institutions, is deeply embedded in the processes and structures of ASEAN. It has since been widely recognised as the key to ASEAN’s success – or, at least, survival – as a regional entity.

However, ASEAN’s disinclination towards the use of “hard” legal mechanisms has been questioned in light of the proliferation of cross-border trade and an increasing dependence on external trade and investment within the region. This has been accompanied by an urgent need for a viable legal framework for trade and investment that has, till date, yet to materialise. As observed by Chief Justice Sundaresh Menon, “it is still not possible to speak of a “Southeast Asian” commercial law in the way one might speak of European commercial law”¹. Accordingly, Menon CJ has encouraged ASEAN countries to consider recognising one another’s civil court judgments by, for instance, signing the Hague Convention on Choice of Court Agreements. In a similar vein, Foreign Affairs and Law Minister K Shanmugam noted that the harmonisation of legal rules “can help to remove uncertainty, reduce cost, generate greater business confidence, and ultimately advance ASEAN community-building goals.”²

However, the path towards homogeneity is one filled with potential pitfalls, given the divergence in the cultural, political and social makeup of the region³ – or, phrased in more vivid terms, its “rampant pluralism”⁴. Further, the legal systems of the member states differ greatly, ranging from the common law systems of Brunei, Malaysia, and Singapore, to civil law systems such as Indonesia, and even hybrids of both in the systems of Thailand and the Philippines.⁵ Given countries’ natural attachment to their respective and substantially different legal traditions, attempts to harmonise national legal rules would indeed prove difficult, especially considering ASEAN members’ aversion to the creation of supranational authority. As Lay postulates, “ASEAN leaders will never surrender national sovereignty for a “fortress Europe” type of regionalism”⁶.

In this light, it is of paramount importance to distinguish between (1) legal transplantation, where legal systems unilaterally amend their internal rules and adopt rules that are more frequently observed in other legal systems; (2) legal unification, where countries agree to replace national rules and adopt a unified set of rules chosen at the interstate level; and, lastly, (3) legal harmonisation, where countries agree on a set of objectives and targets, and leave each country free to amend their internal law to fulfill the chosen objectives.⁷ While all three adaptation processes seek to facilitate the reduction of differences among legal systems, it is legal harmonisation that is best suited to the peculiarities of the region and to ASEAN itself. For instance, Lay suggests that ASEAN will likely rely on the musyawarah and musfakat principles to reach agreement on delicate issues such as harmonising ASEAN members’ national laws into a regional system that respects cultural sensitivities and national sovereignty.⁸

In view of the region’s aim to create an integrated economy by 2015, ASEAN has, till date, made slow but steady progress towards legal harmonisation within domains such as e-commerce. While ASEAN continues to make a shift towards greater legalisation, it would be prudent for it to continue to adopt the gradualist approach that has defined the organisation through the years, as opposed to grand transformative plans that ignore or discount the importance of the durability of the institutional status quo.⁹

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[1] ASEAN Integration Through Law Concluding Plenary, 25 August 2013, Keynote Address by Chief Justice Sundaresh Menon at [13]

[2] “Rule of law key for ASEAN’s progress, says Shanmugam” (20 June 2012) Today

[3] Lim Yew Ngee, “A case for harmonisation of ASEAN contract laws”, 17 Sing LR 373, p. 403

[4] Andrew Harding, “Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”” [ch.9 of Nelken, D., and Feest, J. (ed), Adapting Legal Cultures (Oxford, Hart Publishing, 2001)]; p. 15

[5] Deborah A Haas‚ “Out of Others’ Shadows: ASEAN moves toward greater Regional co-operation in the Face of the EC and NAFTA”‚ 9:3 AmUJ Int’l & Pol’y 809‚ 814 (1994) at 857-863.

[6] Lay Hong Tan, “Law and Policy in ASEAN Economic Integration”, Asia Business Law Review, No 38, October 2002, p. 7

[7] Carbonara, Emanuela and Parisi, Francesco, The Paradox of Legal Harmonization. Public Choice, 2007; George Mason Law & Economics Research Paper No. 05-40; Minnesota Legal Studies Research Paper No. 07-14, p. 368.

[8] Lay Hong Tan, “Law and Policy in ASEAN Economic Integration”, Asia Business Law Review, No 38, October 2002, p. 8.

[9] Prado, Mariana Mota and Trebilcock, Michael J., “Path Dependence, Development, and the Dynamics of Institutional Reform”, University of Toronto Law Journal, 2009; U Toronto, Legal Studies Research Paper No. 09-04, p. 379.

The Future of Champerty in Singapore?

The Future of Champerty in Singapore?

The exception created in The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju

Reynard Chua

INTRODUCTION

Maintenance is defined as “officious intermeddling in litigation”.¹ What this seems to suggest is that a third party to a lawsuit is “support[ing] litigation in which he has no legitimate interest without just cause or excuse”.²

Champerty is a particular form of maintenance “where one party agrees to aid another to bring a claim on the basis that the person who gives the aid shall receive a share of what may be recovered in the action”.³ A prime example comes in the form of contingency agreements, whereby a person agrees to fund the lawsuit in return for an agreed proportion of the damages obtained, if the lawsuit is successful.

At common law, maintenance, which includes champerty, is both a crime and a civil wrong, i.e. a tort.⁴ Although many jurisdictions, including England itself, has since abolished this common law rule,⁵ this particular rule still appears to stand in Singapore given that Parliament has not yet intervened on this issue.

The scope of this article, however, lies in the rules of champerty in its application as part of the professional regulatory framework. The doctrine of champerty, as applied specifically to lawyers, is stated clearly in the Legal Professions Act:⁶

107.—(1) No solicitor shall —

(a) purchase or agree to purchase the interest or any part of the interest of his client or of any party in any suit, action or other contentious proceeding brought or to be brought or maintained; or

(b) enter into any agreement by which he is retained or employed to prosecute any suit or action or other contentious proceeding which stipulates for or contemplates payment only in the event of success in that suit, action or proceeding.

…

(3) A solicitor shall, notwithstanding any provision of this Act, be subject to the law of maintenance and champerty like any other person.

The Legal Profession (Professional Conduct) Rules⁷ also provides for this issue, stating that:

Contingency fees prohibited

1. An advocate and solicitor shall not enter into any negotiations with a client —

(a) for an interest in the subject matter of litigation; or

(b) except to the extent permitted by any scale of costs which may be applicable, for remuneration proportionate to the amount which may be recovered by the client in the proceedings.

THE POLICY BEHIND CHAMPERTY: TRACING ITS HISTORY

It has long been recognised that the law of maintenance and champerty are founded upon considerations of public policy and needs to be changed and shaped by the societal norms of the time.⁸ In Hill v Archbold⁹, Danckwerts LJ stated that “the law of maintenance depends upon the question of public policy, and public policy … is not a fixed and immutable matter. It is a conception which … must be alterable by the passage of time”.

While the history of maintenance and champerty are too old to be easily traced, Lord Mustill in Giles v Thompson adequately explained their historical significance in medieval times. The justice system of the time did not have the strength to “resist the oppression of private individuals through suits fomented and sustained by unscrupulous men of power”. Champerty was worse, as the purchase of a financial interest in the litigation created the “temptation to the suborning of justices and witnesses and the exploitation of worthless claims which the defendant lacked the resources and influence to withstand”.¹⁰

As early as 1787, however, famed philosopher Jeremy Bentham posited that the doctrines of maintenance and champerty were no longer needed, as judges on the bench had become independent enough to not fear the influence of high-ranking individuals, such as barons and their ilk.¹¹ Lord Mustill corroborates this, highlighting that the courts have become stronger, with consistent mechanisms and self-reliant participants. Abuses can be easily detected and forestalled, and thus litigation better determined in accordance with justice.¹²

It appears then that the focus nowadays lies more within the realm of professional conduct regulation. Menon CJ, in Kurubalan¹³, recognised that while the justice system itself may be more resistant to interference by “unscrupulous” individuals, it remains that “a lawyer with a personal economic state in the litigation … faces a potential and often acute conflict of interest”.¹⁴ This may surface as a loss of professional objectivity, or even a temptation to pervert the course of justice, on the part of the lawyer.¹⁵ The considerations as highlighted by the Court of Three Judges are chiefly the administration of justice, and the safeguarding of confidence and honour in the legal profession.¹⁶

THE EXCEPTION CREATED

While the decision in Kurubalan plainly reaffirmed the applicability of the law of champerty to the regulation of legal professionals (having ordered a six-month suspension on the lawyer in breach), it also appeared to have created an exception, albeit in obiter dicta. The Court of Three Judges stated that:¹⁷

[I]t would be permissible and even honourable for an Advocate and Solicitor to act for an impecunious client in the knowledge that he would likely only be able to recover his appropriate fees or disbursements if the client were successful in the claim and could pay him out of those proceeds or if there was a costs order obtained against the other side.

[emphasis in original]

On its face, this is indeed a classic situation whereby champerty should be made out. The lawyer in this case would be making an agreement with the client such that he would get paid based on the results of the litigation. In this sort of situation, it is submitted that the public policy against champerty still triggers, as the lawyer indeed has an economic stake in the litigation (since he only gets paid if the results are favourable), one which may present a conflict of interest in the way he acts for the client. The Court’s explanation that such an arrangement would not be caught by s. 107 of the Legal Profession Act because it “would not amount to acquiring an interest in the fruits of litigation” ¹⁸ is not entirely satisfactory, as the lawyer is still personally and economically interested in the outcome of the litigation, which determines whether he gets any remuneration from the work rendered.

However, this exception has arguably been rightly created. In this particular scenario, the Court of Three Judges appeared to have had in mind an overriding policy reason in the form of “ensuring access to justice”.¹⁹ As stated previously, the policy considerations driving the enforcement of the law of maintenance and champerty are not immutable. It changes based on the development of the society. The concern for equal access to the justice system (regardless of the ability to pay) is one that has been raised in recent times. This is likely because of skyrocketing legal costs, leaving the less well off of the society unable to even contemplate legal action. While the call for more pro bono work on the part of lawyers has been repeatedly sounded, this exception provides an alternative route for lawyers to render aid to people who would otherwise not be able to afford legal representation.

It can thus be said that the policy consideration of equal access to justice is of overriding importance, only, as emphasised by the Court, in the case of an impecunious litigant. In such situations, the law of maintenance and champerty should not apply to limit lawyers who are genuinely acting in the best interests of the client, so that the client is not denied the opportunity to seek justice simply because of the lack of financing.

On the other hand, whether such an exception to the law of maintenance would stifle pro bono work remains to be seen. This could be an unforeseen consequence of the exception. Since both lawyers and clients would see the situation envisioned by the exception as a win-win situation, there is no stopping all pro bono work (which often involves impecunious clients in any case) from turning into a advocate-client relationship with an arrangement where the lawyer only recovers his fees or disbursements if the claim is successful or if costs are ordered against the other party. However, this development could still prove to be an advantageous one, especially for litigants stuck between the means-testing threshold of pro bono agencies and the reality of being able to afford good legal representation.

GOING FORWARD As the Court of Three Judges emphasised, outside of this narrow exception, lawyers who enter into champertous agreements can still expect a “substantial period of suspension”, “until and unless there is a change in the law”.²⁰ The decision should not be seen as having changed any law in relation to the law of champerty, but rather as a harbinger of changes to come. The laws prohibiting champerty still remains good law in Singapore.

With the focus drawn towards the consideration of providing access to justice for all, it may be that the laws of champerty are due to change. Many other jurisdictions, including the UK and Australia, have recognised that a regime allowing contingency agreements, i.e. arrangements of payment based on the success of the litigation, or the amount of damages, may facilitate access to justice.²¹ In fact, contingency fee arrangements have already been suggested to the Parliament in 2007, particularly as a means to increase access to justice for plaintiffs who are impecunious, but do not qualify for legal aid.²²

Changing the law of champerty is a balancing exercise between the policy considerations that act as push and pull factors. This is a role best played the Parliament, who has the resources to undertake the required research into the social impacts as well the mandate of the people. Moreover, as mentioned by the Chief Justice, any reform would require “carefully drawn parameters that regulate the extent to which such fee arrangements would be permitted and this makes it a subject more suited for the legislature rather than for the courts to develop”.²³

For now, we should laud the creation of the exception. It provides, in the interim, an alternative route, that while not so extreme as allowing contingency fee arrangements, provides access to justice for impecunious clients. It stands apart from pro bono, and is an alternative avenue for lawyers to give back to society.

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[1] The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju [2013] SGHC 135 [Kurubalan] at [40]; Hill v Archbold [1968] 1 QB 686 [Hill] at 693.

[2] Camdex International Ltd. v Bank of Zambia [1998] 1 QB 22 at 29.

[3] Kurubalan at [40]; Otech Pakistan Pvt Ltd v Clough Engineering Ltd [2007] 1 SLR(R) 989 at [32].

[4] Hill at 693.

[5] Criminal Law Act 1967 (UK), c 58, s 13(1)(a).

[6] Cap 161, 2009 Rev Ed Sing.

[7] Cap 161, Section 71, 2010 Rev Ed.

[8] Stevens v Keogh (1946) 72 CLR 1 at 28.

[9] Hill at 697.

[10] Giles v Thompson [1994] 1 AC 142 [Giles] at 153.

[11] Jeremy Bentham, Defence of Usury, 4th ed (London: Payne and Foss, 1818) at XII.7, online: Library of Economics and Liberty < http://www.econlib.org/library/Bentham/bnthUs2.html#LETTER XII. Maintenance and Champerty>.

[12] Giles at 153.

[13] The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju [2013] SGHC 135

[14] Kurubalan at [43].

[15] Thai Trading (A Firm) v Taylor [1998] EWCA Civ 370 at [28].

[16] Kurubalan at [45].

[17] Kurubalan at [82].

[18] Kurubalan at [83].

[19] Kurubalan at [89].

[20] Kurubalan at [81].

[21] Chua Thye Tan & Justin Yip, “Champerty: For the Promotion or the Subversion of Justice?” (2013) 19 Stamford Law Chronicle 5.

[22] Sing, Report of the Committee to Develop the Singapore Legal Sector (Final Report) (September 2007) at 30 – 31, online: Ministry of Law (Singapore) <http://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclicke1d7.pdf>.

[23] Kurubalan at [46].

Interpretations: Thoughts on the SLR Lecture by Sundaresh Menon CJ

Interpretations: Thoughts on the SLR Lecture by Sundaresh Menon CJ

Xing Yun*

The Singapore Law Review Lecture (“SLR Lecture”) was started in 1984 to raise the profile of the Review and attract good students onto the editorial board.¹ It has since evolved into an institution by itself and is now the longest running public lecture on law in Singapore. Punch Coomaraswamy J delivered the inaugural SLR Lecture on “The Perils of Drafting”.² Perhaps fittingly, the 25th edition of the lecture is titled “The Interpretation of Documents: Saying What They Mean or Meaning What They Say”³, delivered by the Honourable the Chief Justice Sundaresh Menon.

The shift in lecture topic from drafting to interpretation mirrors Menon CJ’s observation that “the law has evolved from a literal approach, to what is commonly known as the purposive approach (in statutory interpretation) and the commercial or contextual approach (in contractual interpretation)”. Back in 1984, the s 9A of the Interpretation Act was not in existence and it was more than two decades before Zurich Insurance⁴. In this context, it made sense, then, to focus more on proper drafting, so as to avoid the prospects of expensive litigation later down the road. However, even a well drafted law has its problems; the shortfalls of the literal approach are well documented, resulting in courts taking on more proactive roles in interpretation.

As one would expect from a common law jurist, Menon CJ started his lecture by reiterating the central role of the objective approach in the common law tradition. The objective approach “shift[s] the burden … [to] the contracting parties to ensure at the outset that their respective subjective intentions are accurately encapsulated within the four corners of the legal text”. The inadequate discharge of this burden was however immediately acknowledged as an inevitable source of interpretative dispute. “The imperfect mind, bedevilled with imperfect foresight and knowledge, and subject to economic constraints, directs the drafting of a legal text using language that is inherently imprecise.”

The economic analysis in particular merits attention. It is an acknowledgment that parties cannot be expected to contract for all possibilities. By deliberately leaving some portions open, parties are taking the risk that those issues will not result in protracted and expensive proceedings. The author however submits that courts should not hastily jump on this contracting impossibility as a justification for taking on a more hands-on approach. When parties make the conscious decision to leave certain matters out of a contract, they depend on the court to adjudicate not just on the fairness, but also according to their reasonable expectation of the result at the time they took the decision. While it may be fair to take into account matters such as commercial context, this should not come at the expense of certainty. Indeed, it is acknowledged that the two do not necessarily conflict. The point to be made though, is that courts should err on the side of caution and exercise the appropriate self-restraint in not departing too far from written contracts for the sake of commercial fairness.

After establishing the need for the purposive and contextual approaches, Menon CJ then considered the approaches in detail. Of note are the limitations of these approaches. While both approaches try to give effect to the purpose/intent of the drafter/parties, the commercial context is more contentious because Singapore has departed from the UK analysis of the extents of the contextual approach.⁵ Menon CJ justified Singapore’s higher threshold of “necessity” by highlighting the differences between interpretation and implication, with the latter involving some form of rewriting of the contract. The question of implication of statutes was however left open, though a lower threshold may be possible since, as Menon CJ noted, parliamentary intention can be ascertained much more easily.

Menon CJ’s lecture seems to indicate that the burden of the cost-benefit analysis has been shifted onto the courts. For instance, in the context of statutory interpretation, ‘the courts should have regard to “the desirability of persons being able to rely on the ordinary meaning … taking into account its context … and the purpose or object underlying the written law”, and also, “the need to avoid prolonging legal or other proceedings without compensating advantage”‘. Whether prior negotiations should be admitted as evidence was also described as a balancing act between the cost and benefits. These do not suggest, however, that parties can abdicate their responsibilities of drafting adequate contracts (and there is indeed no incentive for them to do so). Rather, the statements serve as a reminder that the courts, with their significant discretion in the interpretation of contracts, must also take a measured approach in discharging justice without compromising on efficiency, and vice versa.

The Chief Justice understandably chose to reserve his thoughts on some outstanding issues. It is noteworthy however that the live issues he highlighted, such as the admission of prior negotiations in contractual interpretation⁶, the use of expert evidence in establishing commercial context⁷ and the expansion of the contractual approach to other areas of contract law in the UK⁸, were all concerning the further liberalisation of existing rules. This suggests that future debates in the area of interpretation, at least in the Singapore context, will likely be centred on increased liberalisation.

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*Executive Editor, Singapore Law Review. All remarks made in this article are mine alone and do not reflect the position of the Review.

[1] Kevin Tan, 10 Years of the Singapore Law Review (1993) Sing L Rev 24, at 38

[2] (1985) Sing L Rev 39

[3] A transcript of the lecture can be found in the 32nd issue of the Singapore Law Review, to be published in mid 2014.

[4] Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR 1029; [2008] SGCA 27 [Zurich Insurance]

[5] It is well documented that Singapore courts have chose to retain the (higher) threshold of “necessity” as the test for implication of contractual terms. See Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43 [Sembcorp Marine]; Foo Jong Peng v Phua Kiah Mai [2012] SGCA 55; c.f. Attorney-General of Belize and others v Belize Telecom Ltd and another [2009] 1 WLR 1988 [Belize]

[6] See Chartbrook Ltd and another v Persimmon Homes Ltd and another [2009] 1 A.C. 1101; Zurich Insurance supra note 4; Sembcorp Marine supra note 6

[7] See Rainy Sky SA and others v Kookmin Bank [2011] 1 WLR 2900

[8] See Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2009] 1 AC 61; Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44; Belize supra note 6

Are we Students, or are we Lovers?

Are we Students, or are we Lovers?

An exploration of the implications of student-teacher relationships

Zhang Chuangzhong

In a student’s journey from the formative to the educated, teachers are the beacons of light illuminating the path before us. Playing such an important role, the teacher-student relationship is inevitably close, and in some situations, almost intimate. The question then arises: when does such a relationship cross the threshold from professional to personal? Is a casual invitation to the tutor’s house, or perhaps a cup of coffee at a nearby café, an illicit affair?

Recent headlines have revealed such a complication, with the relationship between student Darinne Ko and professor Tey Tsun Hang branded as ‘sex for grades’ by the media. Conversely, both parties have alleged that their relationship was born out of mutual attraction, with the gifts given out of affection, not bribery, and the grades awarded out of academic excellence, not partiality. In every teaching contract, there is invariably a clause stating that a teacher must maintain professional boundaries in his or her interactions with students. In NUS, for example, the Code of Conduct mandates staff members to ensure that their private activities are not in conflict with professional obligations. The university enforces this by demanding that their staff declare any personal relationships that result in a conflict of interests, as well as any gifts received from students that are worth more than a hundred dollars.

However, while boundaries of professionalism are demarcated, such clauses are often vague and fail to explicitly and specifically detail the limits of such a relationship. Yet it is admittedly difficult to determine the exact degree of familiarity that begins to contravene a professional relationship, given the infinitely complex nature of interpersonal relationships.

Further, partiality is also punishable as a crime. Under the Prevention of Corruption Act (PCA)¹, a person will be found guilty for corruptly giving or receiving from another a gratification as an inducement or as a reward for doing or forbearing to do something. Under this provision, the courts will consider a person ‘corrupt’ if he or she induces another to act dishonestly or unfaithfully. However, it is oftentimes difficult to assess a person’s intention behind a certain gift. Corruption, therefore, is an insidious shape shifter taking many forms, from the innocuous keepsake to the devious seduction. This difficulty was recognized by the courts in Chan Wing Seng v PP², where they have ruled that a precise definition of ‘corrupt’ should be avoided, given that such a definition may unnecessarily restrict the section and compromise its effect. Further, given that ‘gratification’ encompasses a wide range of acts, it is consequently difficult to determine if a gift or favour is presented under the guise of corruption. The result is that the PCA casts a wide net, which bestows upon the courts a wide discretion to exercise their authority.

Hence, these laws suggest that the scope for a personal student-teacher relationship is extremely narrow. What, then, is to be made of a genuine friendship or relationship blossoming between student and teacher? Friendships, much more relationships, can arise out of the most unexpected of situations, and given the extensive amount of time students spend around teachers, it is not unreasonable to expect a few close friendships developing. To maintain a harmless relationship without risking any misconstruction, the obvious solution will be to keep everything aboveboard, with outings carried out in groups, and gifts kept to simple cards and trinkets. More drastically, the parties can perhaps implement a hiatus to delay any further deepening of the relationship until the student graduates. Then again, who can fathom the intricacies of human relationships? Regulation may not always prove to be the most feasible of solutions. Where relationships grow more and more intense, risks will inevitably be taken, as both parties war with their conflicting emotions. The line between the professional and the personal will be consequently blurred.

However, it should be noted that the consequences of contravening the law are dire. Not only will the teacher lose his job and face criminal punishment, but the student will be implicated as well. Punishment under the PCA entails a fine of up to a hundred thousand dollars or imprisonment of up to five years, or both. Interestingly, even if the person is not convicted, the consequences are catastrophic as long as the charge can be made out. Both parties will have their credibility and moral integrity damaged by the media, which has both the ability and the tendency to gleefully disclose the names and personal details of accused persons. Further, given the social stigma attached to such cases, coupled with the relatively conservative nature of Singaporeans, this damage will be irrevocably destructive to the parties’ social and professional lives. Even a complete acquittal, then, will be of little significance if reputations were shredded in the process. The headlines and media hype over Tey and Ko’s case highlights this very situation, where derogatory comments on the parties’ actions, background and even looks are splashed across every media channel.

One cannot help but wonder if all these could have been avoided. If the school could have implemented a system to manage such relationships at the onset, such controversy could have been avoided. As it currently stands, the university has indeed recognized the inevitability of familial relationships by regulating the extent to which such relationships interfere with professionalism. Professors are required to declare any relatives who have entered the school and are accordingly prohibited from teaching them, setting and even discussing examinations. Perhaps the university could consider extending these measures to student-teacher relationships. Such measures could have allowed Koh and Tey to seek recourse by declaring and subsequently abiding by the accompanying regulations, instead of keeping their relationship in the shadows, only to have the blinding light of the law expose their affairs.

“Let us not to the marriage of true minds admit impediments”. Shakespearean fans will resonate with the idealism in his words, even as cynics scoff. Yet it must be qualified, that there is a proper place and time for a friendship or relationship to be borne to fruition. For two parties who are of one mind, surely a few short years will be a small price to pay. The hasty, however, bears a most burdensome risk, as Tey and Ko are finding out for themselves. Moreover, given that Tey and Ko are no longer seeing each other, one cannot help but wonder if the risks that they took for that short affair were worth such a costly venture.

Taken from the Dean’s Message to the Student body: It was never the prosecution’s case that grades were in fact tampered with. NUS Law is acutely aware that grades and degrees shape the future of the graduates, and the school’s reputation as an institution. The school is conducting a review to ensure the integrity of the grading system and thus far have found no evidence of any irregularities.

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[1] Cap 241, 1993 Rev Ed

[2] [1997] 1 SLR(R) 721

When doctors overcharge, what price do they pay?

When doctors overcharge, what price do they pay?

Relooking the decision of Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122

Eric Hu*

The decision of Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122 (“the present case”) is a significant one as it sets out a clear position in Singapore that doctors have a higher ethical duty which triumphs over all other commercial considerations.

Dr Susan Lim was the principal physician for a member of the royal family of Brunei and she billed a total of approximately $24 million for her services. Dissatisfied with the costs, the Bruneian government sought the intervention of Ministry of Health of Singapore, which started the disciplinary proceedings. The Court thoroughly examined the 94 charges against Dr Lim and found that her fees charged were “grossly excessive and vastly disproportionate to the services actually provided”.¹ The Court of Three Judges eventually agreed with the Disciplinary Committee (DC) in finding Dr Lim liable for professional misconduct².

The decision sets out clearly that there is an ethical obligation on all doctors in Singapore to charge a fair and reasonable fee for their services, given the “immeasurable trust and confidence bestowed on them both by patients and by community at large”.³

A few questions are worthy of consideration.

WHAT IF THE PATIENT AGREED TO THE MEDICAL COSTS?

In the present case, there was no fee agreement between Dr Lim and the patient. However, suppose a doctor clearly communicated with the patient of the medical costs with clear documentation and the patient agreed to the costs. Can the doctor still charge a higher price than the market rate? The Court states a firm no: Overcharging can still occur even if there is a prior agreement on fees⁴ as ethical obligations of a doctor must “prevail over contractual obligations”⁵.

WHAT IF THE DOCTOR IS EXPERIENCED OR IS THE BEST IN HIS OR HER FIELD?

The answer given by the courts? The doctor could not overcharge nevertheless. It seems straightforward. However, it may not be easy to tell in practice. This may be more clear-cut for simple procedures, which have a standard fee range for public and private hospitals. In the present case, Dr Susan Lim clearly overcharged over than a few times than the market rate for simple procedures which do not require her expertise or skills. The DC found that Dr Lim was not treating the patient in her specific field of specialisation, i.e. as a general surgeon but instead her treatment was palliative in nature and she was “coordinating treatment rendered by other specialists”⁶.

However, when it comes to complex surgical procedures which did not arise in the present case, it may not be as straightforward. It is hard to put a price on something intangible yet valuable like an experienced doctor’s skill. Certain factors such as his qualifications and years of practice can only serve as criteria.

Further, it seems imperfect to compare one experienced doctor to another. Do we take reference from the best in the field and adjust downwards? Who then determines what the best doctor in the field can charge?

These are difficult questions to ponder upon, especially when no fee guidelines are given.

SHOULD THERE BE A FEE GUIDELINE?

Fee guidelines have been introduced in 1987, but were scrapped in 2010 after Competition Commission of Singapore (CCS) deemed them to be anti-competitive.⁷

It should be noted what constitutes a fair and reasonable fee for services rendered depends not only on the relevant facts but also on views of experts in the particular field of practice.⁸ However, it was argued by Dr Lim that the views of experts were so varied that it would be impossible to determine a fair and reasonable fee, especially without fee guidelines. However, the Court disagreed and stated that it must be at the very least possible to determine the possible range of fees fair and reasonable in a particular set of circumstances.⁹

The Court suggested an approach of improved pricing transparency to arrive at fair and reasonable fees for medical services.¹⁰ This suggestion appears to be taken up by hospitals. From 2 Sep 2013, Ministry of Health has published percentiles of bill sizes for each procedure for public and private hospitals.¹¹

However, many doctors in private and specialist clinics still face a problem: What is this proverbial ‘ethical limit’ decided by the Court? It has led to a number of doctors calling for a revisit for such a guideline. They called for the Academy of Medicine, Singapore Medical Association and the Health Ministry to come together to provide answers to the perplexing question of what the ethical limit is¹².

Some doctors have revealed which factors they use to determine the size of their bills, in the wake of this case. Public sector fees, insurance payouts and peer pressure all help them to gauge the ethical limit on how much specific services should cost¹³. However, as a doctor pointed out, it would be “near impossible” to know where the lines are drawn in the absence of specific guidelines¹⁴.

But before we bring back the guidelines, the CCS’s concerns must be addressed. Law don Burton Ong pointed out that the CCS did not condemn all professional fee guidelines per se. He proposed a rephrasing of the guidelines such that it will be structured for patients, not doctors. This could then serve as “an objective and rational benchmark for ascertaining when and if doctors should be sanctioned for overcharging their patients”¹⁵. This suggestion can possibly be taken up.

LOOKING FORWARD

However, as the details of an ethical limit are being worked on, we can consider a suggestion. The lawyer profession has been alluded to in the Court judgment. Like doctors, lawyers also have a duty not to overcharge their clients. Similarly, the legal profession does not have written price guidelines. Perhaps the medical profession can consider drawing from the Legal Profession (Professional Conduct) Rules.

For example, Rule 35 of the Rules sets out sub-rules which require the lawyer to inform the client of an estimate of fees and to inform of approximate costs every 6 months. If the final amount varies substantially, the lawyer must advise his client of the change in circumstances in writing. Rule 36 further requires the lawyer to advise the client of costs at the outset of a contentious matter so that the client is aware at the outset of costs and risks of civil litigation.¹⁶

Similarly here, doctors can inform patients on their conditions and costs of procedures at the outset, particularly what to expect at different stages of treatments. If there is a change in the patient’s condition, the doctor should likewise advise the patient and his family necessarily. Certainly, this suggestion may not be directly transferable to the medical context and one needs to possibly consider issues such as patient confidentiality and medical ethics.

In practical terms, the above suggestion may work. Often a complaint against a doctor only arises when the patient feels something is amiss or the final costs are far from what he expected. Thus, if the final costs have been communicated right from the start and there was mutual consent, such complaints might not arise in the first place. This is what Dr. Susan Lim has not done satisfactorily, which led to the Bruneian Government launching the complaint.

However, this does not stop cases where a patient changes his mind and turns around to state that the price was outside of the ‘ethical limit’ despite the earlier agreement. After all, this seems to be what the Court is saying: even if there is an agreement, a doctor cannot charge beyond the ‘ethical limit’. The earlier suggestion can do so much as to minimise the numbers of complaints arising. However, doctors in the above scenario need not be overly concerned as the ethical rule is ultimately one rooted in “logic, common sense, justice and fairness … [and] will not be enforced unreasonably”¹⁷ as the Court rightfully noted.

When a complaint is launched, a series of investigations will begin. While there is now an ‘ethical limit’, it is submitted that in practice, the SMC will probably only commence disciplinary proceedings if there has been an egregious disregard for the Ethical Code and Guidelines or exaggerated overcharging of fees, as in the present case. As the Court stated, “one’s peers will be slow to find a breach or to find professional misconduct in marginal cases”¹⁸.

RELOOKING THE PENALTIES?

A final point is regarding the sanction meted out to Dr. Lim. The DC has found that Dr Lim has breached her ethical obligation by the “widest and clearest margin” and meted out the maximum financial penalty of $10,000 and the maximum suspension period of 3 years. Yet, the DC felt that it was not appropriate to remove Dr Lim from the register as she has displayed exceptional care to the patient and was an “exceptionally skilled doctor who brought credit to Singapore”¹⁹. However, the penalty of $10,000 seemed a slap on the wrist considering the huge quantum of fees Dr Lim invoiced. This sentiment is likewise expressed by the Court²⁰. While the maximum penalty has now been raised to $100,000²¹, it is submitted that the Disciplinary Tribunal can exercise its discretion under Section 53(2)(h)²² to order the disgorging of profits back to the patient in future cases if that proved necessary. The Tribunal may also consider making a Community Service Order, drawing reference from the Community-Based Sentencing (CBS) options provided in the Community Court. This can be useful, following recent calls for more pro bono work in the medical sector²³.

In addition, the disparity between a maximum 3-year suspension and a lifelong erasure from the register seemed huge. Thus, the Legislature can consider increasing the maximum suspension period. However, in practical terms, the 3-year period may already have a significant impact to the doctor’s clientele.

CONCLUSION

In all, the decision has been helpful in clarifying that there is indeed an ethical obligation by doctors not to overcharge and that obligation triumphs over all other contractual obligations. However, the ethical limit one can charge still remains arbitrary. It is best that medical associations and boards can come together to clarify this, ideally via fee guidelines. Associate Professor Burton Ong’s suggestions can be considered as we reintroduce the fee guidelines. Finally, the Legislature and the Disciplinary Tribunal can consider relooking the penalties and orders they can make in future cases.

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*Special thanks go to Yeoh Jean Ann and Benjamin Kwok for their invaluable comments. All opinions and errors remain solely my own.

[1] Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122 at [86]

[2] Under the Medical Registration Act (Cap 174, 2004 Rev Ed). It was the earlier Act which applied instead of the current Act as the misconduct occurred before the amendments were made by the Legislature.

[3] Supra note 2 at [52]

[4] Ibid at [50]

[5] Ibid at [64]

[6] Ibid at [74]

[7] Competition Commission Singapore, Media Release, (19 August 2010). Also see Lim Meng Kin, “Medical fee guidelines anti-competitive”, Health Policy Monitor, October 2010.

[8] Supra note 2 at [53]

[9] Ibid

[10] Ibid

[11] http://www.moh.gov.sg/content/moh_web/home/costs_and_financing/HospitalBillSize.html

[12] Huang Shoou Chyuan, “Revisit need for fee guideline”, The Straits Times Forum (4 July 2013)

[13] Poon Chian Hui and Bryna Singh, “Doctor’s charges: How high is too high?”, The Straits Times (3 July 2013)

[14] Ibid

[15] Burton Ong, “Fee guides: Focus on patients, real charges”, The Straits Times (17 September 2013)

[16] Yashodhara Dhoraisingam, “Understanding a Lawyer’s Professional Duty to Provide Clients Information on Fees”, The Law Gazette (January 2005)

[17] Supra note 2 at [70]

[18] Ibid

[19] Ibid at [142]

[20] Ibid

[21] Section 53(2)(e) of the current Medical Registration Act

[22] This section provides: “make such other order as the Disciplinary Tribunal thinks fit, including any order that a Complaints Committee may make under section 49(1)”

[23] “Time for more to do pro bono work”, The Straits Times (18 December 2012)

Cooking up Legal Theory

Cooking Up Legal Theory

Nicole Carmen Tan Yi

“[T]heory is built on ignorance” (Halpin, 2000¹). Since it is reasonable to assume that skills attained from practical experience in law will never be rich enough to provide us with what is required from the practice, legal theory endeavours to provide the best understanding of law, by attempting to encapsulate its features: its nature and technical aspects. However, whether legal theory actually does assist in our understanding of law is an entirely different issue, and it is this question that this essay seeks to answer.

To do so, an analogy can be drawn between legal theory and cooking recipes; recipes are instructions that put forth a description of a dish and steps on how to create it. Therefore individual recipes, however general, only cover how to prepare specific kinds of dishes. Similarly, individual legal theories fail terribly in providing a fixed concept of law, as no single theory will be able to provide a framework that will cover the law of every type, in every jurisdiction, and at every era. I am not proposing that legal theory is completely useless, but that the true value of individual theories is in assisting our understanding of law in limited scopes. With this said, before they can be of any practical value, we must first point out the precise role each theory best plays, and apply it accordingly. To do so, two deductions necessarily follow for every theory:

1. The scope of the theory must be identifiable via the acknowledgment of its limitations.
2. The theory must be accurately categorised into any of these three kinds: Descriptive, Normative and Prescriptive.

Deduction (1) is cardinal because we want to apply the theory in real-world situations, and not in a vacuum. Because of the complexity of the interactions between law and real-life situations, in order to efficaciously apply any theory to any real-life context, four important factors must be considered: Who is applying it, what type of law it is applied in, when it is applicable, and where (which jurisdiction) it is applied. Correspondingly, Deduction (1) is needed to tells us:

[Who] if the theory can be applied by everyone in the same way; [What] how well fit the theory will be in a specific area of law; [When] whether we are moving towards or away from such a framework; [Where] if any modifications need to be made before the theory can be transplanted from one jurisdiction to another.

The significance of these factors will be elucidated when we reach the specific examples of legal theories. The importance of Deduction (2) will be handled as the essay goes on, and will form the major theme in the essay, to show how theory assists in our understanding of law.

DESCRIPTIVE THEORIES: JUST FOR STARTERS

For a recipe to be effective, it requires only a framework of how to prepare a dish – a list of the ingredients needed and an explanation on how to prepare it. The addition of other information like the precise cooking techniques does not necessarily improve on its helpfulness, as people have different skills and personal preferences even for the most basic steps (like stirring). Imposing methods of such specificity, if unsuitable, may result in the dish tasting different from what it should. Accordingly, there is value in the positivist’s view that the objective description of law is a worthy goal, because one must have an idea of the skeleton of law before any analysis or application of the theory can come into play; the importance of the conceptual separation of law from morality comes across visibly as well, given that our ideas of morality are inexplicably differing.

Austin’s Command Theory: Reflective of Criminal Law In 19th Century England

In the Command Theory, Austin maintained that coercion is an essential and normative aspect of law, and that legal norms comprise threats backed by sanctions. While this has been fiercely criticised because it neglected the non-coercive dimensions of law, it must be noted that the period which Austin put forth his Command Theory was during the 19th century, where a great deal of emphasis was placed on criminal law due to the skyrocketing of crime rates. Therefore, it is understandable why the purpose of law then focused on maintaining order. However, with the expansion of law to cover various other types such as company and intellectual property law, coordinating interests of people is of greater importance. It is thus imperative to recognise that while this theory is likely to represent the law in 19th century England, it is unlikely to represent the current state of law even in England itself, where various areas of law are not coercive in nature. This illustrates the significance of [When], because as societies progress and law gets more advanced, law’s primary functions may change, making it important to recognise the limitations of such theories’ accuracy in this respect.

Nevertheless, the fact that this is a descriptive theory of the past does not render it useless in assisting one’s understanding of today’s law, as long as one can accurately identify the area of the law in which it can be applied [What] and does not apply it as a blanket concept. The Command Theory can still accurately capture many aspects of criminal law in many societies today. Singapore serves as an excellent example, as people here are fined for extremely trivial activities, such as selling chewing gum (as per the Sale of Food (prohibition of Chewing Gum) Regulations²). While these are considered to be perfectly acceptable in other nations, most people who come to Singapore nevertheless adhere to these rules – the most plausible explanation of this, is that the threat of sanctions provides criminal law with normativity that it would otherwise not have.

Hart’s Model of Rules: Focus on Legal Rules and Materials

As a descriptive theory, Hart’s theory attempts to describe the law as it is, and focuses on the idea that a legal system consists of primary and secondary rules. However, it nevertheless covers grey areas of law, such as whether constructive dismissal falls within the definition of “notice of dismissal” in section 84(1)(b)(ii) of the Employment Act³, which he would label as a “penumbra of doubt”. His theory allows us to understand that the issue would be whether there is a primary of obligation imposed on employers to provide statutory compensation to constructively dismissed pregnant employees, and that judges will use their discretion to decide on this (covered in “open texture – this however, is left as a preliminary concept with little development).

Although the lack of emphasis on legal reasoning has been fiercely criticised, placing greater emphasis on legal rules has greater worth than what people would usually credit it for. This is because we can only use legal materials as our reference to what the law is; in attempting to understand the present situation of the law, we can only turn to legal rules and use legal materials to help us ascertain how the law really is, as opposed to thinking processes of lawyers, legislatures or even judges. Therefore, rules play a much larger and more concrete role than legal reasoning. Going back to the analogy, the precise steps taken in its preparation although imperative in preparing the dish, are no longer central to what the dish is once it is served. Steps then become merely norms that the creators of the dish use – thus this belongs not in a descriptive, but a normative theory.

NORMATIVE THEORIES: EACH HIS OWN TASTE

Normative theories describe purported norms relating to law; it is important to differentiate such theories from descriptive theories, because even if a legal rule or decision seems to completely stray from accepted norm, it does not change the fact that it is still valid law. Normative theories are important when one wants a deeper understanding of the process of the creation of law – Legal reasoning, and play a predictive role, to show how an area of law or a specific legal rule is likely to change. However, there is clearly no hard-and-fast rule on the criteria people use in legal reasoning to make a legal decision, for example, one may weigh morality over procedural due process or vice-versa. Thus it is unavoidable that such theories will never accurately predict the outcome of all legal decisions, like how recipes can never describe the exact taste or capture the exact appearance of the dishes created from them.

Dworkin’s Interpretive Theory of Law: Hercules

Dworkin has attracted many critics for his “Right Answer Thesis”, that what people disagree on, is what the right answers to individual cases are, the right answers being how the perfect judge “Hercules” would rule there. While it as a theory providing an interpretive truth is inherently problematic, it forms a completely cogent a normative theory. It is perfectly reasonable to purport that it is a norm that judges would work towards possessing Hercules’ characteristics of “superhuman skill, learning, patience and acumen” (Dworkin, 1977⁴) just as how it is absolutely acceptable to say that all chefs aspire to be a flawless master-chef who cooks the best food.

Furthermore, Dworkin even set the context where his Hercules exists: “some representative American Jurisdiction” (Dworkin, 1977⁵). This serves as an acknowledgment that the process of legal reasoning he purports to be used (with the use of justice, fairness, procedural due process and political morality as primary decision-making factors) may not be as preferable in a different Jurisdiction [Where] – it is highly unlikely that political morality will supersede religious will in Islamic law. Therefore, modifications must be made to these determinative factors in Dworkin’s theory for the theory to accurately reflect legal reasoning processes in such jurisdictions.

Nevertheless, using Dworkin’s theory as a normative framework, it assists in understanding the trend of change that Law in American Jurisdictions undergoes, such as in Adarand Constructors Inc v Pena⁶, where it was held that race based discrimination, including discrimination in favour of minorities (affirmative action), is subject to strict judicial scrutiny. Evidently, fairness (equal treatment to all) was central to this decision, and a balance between political considerations and inherent morals was struck here.

However, the scope of Dworkin’s Theory is rather limited because it only covers judicial reasoning, and fails to make a conscious effort to look at legal reasoning by lawyers or the legislature, which incontrovertibly play an important part in the making of legal decisions. It is obviously unwise to forcefully apply this theory if one wants to understand the legal reasoning processes of lawyers or the legislature, given how their roles in shaping the law are inherently different [Who]. It would be akin to saying that tasters and gourmets affect how dishes prepared are in the same way that chefs do.

PRESCRIPTIVE THEORIES: DISHING OUT THE IMPROVEMENTS NEEDED

When one already knows how to cook a specific dish, one will no longer need to refer to the specific recipe while cooking. However, when people’s taste change, one will need to make modifications so as to suit this change; otherwise, the dish will fail to achieve its purpose of providing satisfaction to its consumer. Correspondingly, in such situations, a prescriptive theory will be useful, as only by having an idea of what the law should be, will one know understand how the law should be reformed to suit the changing needs of people. There is little doubt that improvements can be done without using legal theory, just as how dishes can be improvised in the process of cooking. However, using theory will result in a more efficient reform process, like how changing the recipe used to an improved one results in less time and food wasted compared to a trial-and-error process. Once accepted as a prescriptive theory, the question on how useful a theory is in understanding the law transforms into the simple issue of “whether the new recipe is better than the old one”, because a prescriptive theory only has value if it indeed shows how the law should be.

Posner’s Economic Analysis of the Law: As a Prescriptive Concept

In his earlier works, Posner stated that wealth maximisation of society’s total wealth is a standard that should guide judges in their decisions. As a prescriptive concept, this is a viable and appropriate theory that should be adopted, as it allows us to work with something of tangible value that people can essentially agree on. This is because monetary value is central to people’s interests and well-being, and order in society. It is also one of the few quantifiers that is as (perhaps more) pervasive in the real world as law itself. Applying this approach in Competition Law, it provides a clear explanation why nations should have anti-monopoly laws that specifically exempt natural monopolies. Generally, monopolies do not maximise wealth, given that the lack of competition results in higher prices of goods, and provides little incentive to improve on products. However, natural monopolies are exceptions to this – hence explaining the need to adhere to the specificity of this suggestion.

Feminism: The Need for Individual Analysis

In the case of feminism, there is great variety within the group itself, such that basically the only common belief held is that the law has been distorted towards the perspective or interests of men. As such, in order to get a better understanding of how a specific law should be changed, one needs to analyse each theory within it individually. It is hardly of any use to apply feminism as a theory in its entirety; just as how a general recipe of “preparing seafood” is not going to be of any help in cooking a crab. Nonetheless, just the fact that the idea “women should not be seen as subservient to men” evidently calls for the lifting of marital immunity for rape (found in Section 375(4) of the Penal Code⁷) alone is sufficient proof that individual ideas of feminism can show how the law should be changed.

LEGAL THEORY – THE ICING ON THE CAKE OF PROPER APPLICATION

Descriptive, normative and prescriptive theories play inherently different roles, with descriptive theories assisting us in understanding past and current law, normative theories assisting us in understanding the likely developments of law, and prescriptive theories assisting us in understanding preferable directions that the law should head in. While they individually assist in our understanding of law, they require skills for proper application in order to avoid confusion and muddling of one’s understanding from practical experience. What is important to note is that they are only approximations of the law, however close they may be, and that they may ultimately differ from practical experience. As such, when practical experience proves otherwise, one needs to know when to let go of legal theory and return to relying on the knowledge derived from practical experience. After all, what use is a “fried rice” recipe even to a novice cook attempting to make fried rice, if provides instructions on steaming, or does not have rice as one of its ingredients?

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[1] Andrew Halpin, “Law, theory and practice: conflicting perspectives?” (2000) 7 Int’l J Legal Prof 205

[2] Cap 283, 2004 Rev Ed Sing

[3] Cap 91, 2009 Rev Ed Sing

[4] Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 105

[5] Ibid, at 105

[6] 515 US 200 (1995)

[7] Cap 224, 2008 Rev Ed Sing

Judicial Review in Singapore

Judicial Review in Singapore

Chan Ying Ling

The recent case of Lim Meng Suang v AG¹, where the court was called upon to determine the constitutionality of the controversial statute s 377A² which criminalizes acts of gross indecency between two male persons, has drawn attention to the process of judicial review in Singapore. This essay attempts to paint a general picture on judicial review in Singapore and the internal restrictions placed by the courts on the scope of judicial review.

Judicial power is vested in the courts under Art 93 of the Constitution. Even though “judicial power” is not expressly defined under the Constitution, it has been described in Huddart Parker Pty Ltd v Moorehead³ as the “power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property”.

Under the Constitution, the three branches of government are established under separate chapters, implicitly endorsing the separation of powers. Under the principle of separation of powers, the power of government is separated between three branches of government: the Executive, the Legislature, and the Judiciary. Each of the three branches of government has control over a different domain and operates independently of each other.

Under Art 4, the Constitution is the supreme law of Singapore. Due to the principle of constitutional supremacy, John Marshall CJ in Marbury v Madison⁴ stated that any law that is inconsistent with the written constitution as “the fundamental and paramount law of the nation” is, to the extent of the inconsistency, void. This forms the basis for the courts’ jurisdiction for judicial review. In Chan Hiang Leng Colin v PP⁵ [Colin Chan], the court held that it had “the power and duty to ensure that the provisions of the Constitution are observed”⁶ by declaring as void unconstitutional laws and administrative acts which exceed the limits of the power conferred.

In Singapore, the written constitution confers upon the Judiciary co-ordinate status with the Parliament. In Mohammad Faizal v PP [Faizal]⁷, the court noted that the judicial power of the courts is derived from the Constitution and is thus co-equal with the legislative power and the executive power. Due to the principle of constitutional supremacy, the courts in Singapore have the power to strike down unconstitutional laws.

Preliminary requirements have to be met before the courts are willing to conduct judicial review. Under Order 53 of the Rules of the Court, the applicant applying for leave to grant the relief claimed has to show a prima facie case of reasonable suspicion. The case must be real and not a theoretical one⁸; and it must not be premature⁹. Also, the principle of res judicata applies such that the courts cannot reopen old cases unless it was to do justice¹⁰. The applicant of a case must also have locus standi to bring the case before the court. In Singapore, the “sufficient interest” test is used for judicial review cases in order to sift out claims without merit¹¹.

After preliminary requirements are met, the courts may also decline jurisdiction for judicial review if the issue is not one which is appropriate for the courts to answer or if it falls outside the expertise of the courts. The court in Faizal¹² noted that the principle of separation of powers requires each branch of the government to act within the limits of its own powers. In Yong Vui Kong v AG¹³, Steven Chong J identified three factors which will affect the court’s decision to decline to conduct judicial review. First, the courts will decline to intervene where there is an absence of objective legal standards, such as where the issue is one of political or subjective preference. Second, the courts will decline to intervene where it lacks specialist knowledge. Third, the courts will decline to intervene where the issue is polycentric and involves multiple concerns and perspectives.

In Yong Vui Kong v AG¹⁴ [Yong 2010], the court refused to decide on whether the differentiating measures under the MDA are reasonable because that question goes beyond the jurisdiction of the courts and is best decided by the legislature who has the popular mandate of the people. In Chng, the courts affirmed and applied the House of Lords decision of GCHQ¹⁵ that courts should step in and exercise judicial review only where there is illegality, irrationality or procedural impropriety in the exercise of administrative authority. Also, in Lee Hsien Loong v Review Publishing Co Ltd¹⁶, Menon JC (as he then was) held that there were “clearly provinces of executive decision-making that are, and should be immune from judicial review”. Menon JC further held that a calibrated approach should be taken where the intensity of judicial review is dependent on the facts of the case and the subject matter in question. This approach is based on the doctrine of separation of powers because issues relating to policy are best addressed by the executive rather than the unelected judiciary. In this sense, there is a balance that has to be achieved between judicial review and the principle of separation of powers because there are certain issues which should be left to the executive branch of the government who has the mandate of the people.

It is submitted that the relationship between the Judiciary and the Executive should not be adversarial in nature, but should focus primarily on encouraging public administration which conforms to the rule of law. This is known as the “green-light” doctrine. In Judicial Review, Chan CJ noted that the “green-light” doctrine is likely to be preferred because it allows the seeking of “good government through the political process and public avenues rather than redress bad government through the courts”¹⁷.

In conclusion, to give effect to the principle of constitutional supremacy, the courts have to exercise their powers of judicial review to ensure that legislations are not repugnant to the doctrines of rule of law and separation of powers, and are also not inconsistent with the Constitution. The courts have internal restrictions on their scope of judicial powers and will decline jurisdiction where they do not have the requisite expertise or where it is inappropriate for the courts to intervene. Ultimately, the courts should not develop an adversarial relationship with the Executive, but rather, adopt the “green-light” doctrine and focus on the promotion of good administrative practices.

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[1] [2013] SGHC 73

[2] Penal Code (Cap 224, 2008 Rev Ed)

[3] Huddart Parker Pty Ltd v Moorehead (1908-1909) 9 CLR 330

[4] Marbury v Madison 5 US (1 Cranch) 137 (1803)

[5] Chan Hiang Leng Colin v PP [1994] 3 SLR(R) 209

[6] Supra at [9]

[7] Mohammad Faizal v PP [2012] 4 SLR 0947 at [16]

[8] The Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438

[9] Wong Keng Leoong Rayney v Law Society of Singapore [2006] 4 SLR 934

[10] Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998

[11] ACC v CIT [2010] 1 SLR 273

[12] Ibid at [16]

[13] Yong Vui Kong v AG [2011] 1 SLR 1

[14] Yong Vui Kong v AG [2010] SGCA 20

[15] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

[16] Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453

[17] Ibid at [29]