Leaving an Empty Seat: Wong Souk Yee’s answer to By-Elections in a Group Representation Constituency

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Leaving an Empty Seat: Wong Souk Yee’s answer to By-Elections in a Group Representation Constituency

Benjamin Low Junjie

I. Introduction

In Vellama d/o Marie Muthu v Attorney-General¹ [Vellama], the Court of Appeal held that Article 49 of the Constitution of Singapore,² which deals with the filling of vacant Parliamentary seats, imposed a duty on the Prime Minister to call a by-election “to fill casual vacancies of elected MPs which may arise from time to time”.³ However, despite the supposed universality of its conclusion, the Court of Appeal was quick to confine its judgment to vacancies arising in the context of Single-Member Constituencies (“SMCs”), having observed that separate legislative provisions and rules applied to instances where vacancies arose in a Group Representation Constituency (“GRC”).⁴ It remained an open question then as to what the proper scope and effect of Article 49 was on GRCs.

The recent High Court decision of Wong Souk Yee v Attorney-General⁵ [Wong Souk Yee] has since sought to address that question by holding that by-elections for a GRC would only be held in the event that all Members of Parliament (“MPs”) of that GRC have vacated their seats. This article will analyse the reasoning and the methodology of the High Court in reaching its conclusion and will discuss the implications of the judgment in the realm of constitutional interpretation.

II. Background

In Wong Souk Yee, the Applicant sought mandatory orders requiring that the MPs for the Marsiling-Yew Tee GRC vacate their seats in Parliament and that the Prime Minister advise the President to issue a writ of election for the Marsiling-Yew Tee GRC.⁶ Her action was founded on the basis that a vacancy had arisen in the Marsiling-Yew Tee GRC when one of its MPs, Madam Halimah Yacob, vacated her seat in Parliament on 7 August 2017 to contest in the 2017 Presidential Election.⁷ Since Madam Halimah’s departure, the Marsiling-Yew Tee GRC continued to be represented by its three remaining MPs from the People’s Action Party.⁸

The Applicant further sought declaratory orders in the alternative that s 24(2A) of the Parliamentary Elections Act⁹ [PEA] be interpreted as requiring all the MPs of a GRC to vacate their seats (i) when one or more MPs of the GRC vacate their seats; or (ii) in the alternative, when the only MP in the GRC who belongs to a minority community vacates his or her seat, so as to ensure consistency between s 24(2A) of the PEA and Article 49 of the Constitution.¹⁰ On the flip side, if such an interpretation was not possible, s 24(2A) was to be declared void for inconsistency with the Constitution as per Article 4 read with Article 49.¹¹

III. The High Court’s Decision

A. The Mandatory Orders

The Applicant justified her claim for the mandatory orders on three grounds. Firstly, she contended that Article 49(1) of the Singapore Constitution ¹² requires the calling of a by- election in a GRC when the seat of an Elected MP has become vacant for any reason other than the dissolution of Parliament. Secondly, the Applicant argued that Article 39A(2) of the Constitution¹³ requires that a GRC be represented by an MP belonging to a minority community, until the dissolution of Parliament. Last but not least, it was argued that a by-election should be called so as to give effect to the voters’ right to be represented by an elected MP of their choice.¹⁴

Much of the judicial debate in Wong Souk Yee centred on the Applicant’s first ground, which in effect concerned the proper interpretation of Article 49. For completeness, the full text of Article 49 reads as such:

Filling of vacancies

49.—(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.

(2) The Legislature may by law provide for —

(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;

(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Article 49 in its present form was left untouched by the 1988 Amendments¹⁵ to the Constitution implementing the GRC system. Prior to that, the last substantive change to Article 49 was in 1984 concerning the introduction of Non-Constituency Members of Parliament.¹⁶ No other amendments were made to Article 49 since then. Indeed, when Article 49 was first enacted in the 1980 Reprint of the Constitution, ¹⁷ the GRC system was not even in existence. As Chua Lee Ming J succinctly identified, the true question that the High Court had to address, was the correct interpretation of Article 49(1) was in relation to GRCs.¹⁸ The earlier decision of Vellama had only addressed the scope of Article 49 in the context of an SMC.

The Applicant argued, on a plain reading of Article 49(1), that a by-election had to be called whenever a Parliamentary seat was rendered vacant, regardless of whether the seat belonged to an SMC or a GRC.¹⁹ Thus, whenever a vacancy arose in a GRC, the remaining MPs would have to resign their seats in order for a writ of election to be issued for the entire GRC. This would have to occur even if these MPs had no intention to vacate their respective seats, and where the conditions for disqualification or termination under Articles 45 and 46 were not made out.²⁰ This interpretation of Article 49 was necessary in order to give substantive effect to the requirement in s 27A of the PEA ²¹ that elections in GRCs had to be held between teams of candidates.

The Attorney-General submitted in response that Article 49(1) only required that a by-election in a GRC be held if all the MPs of that GRC vacated their seats mid-term or, in the alternative, that Article 49(1) did not apply to GRCs but only to SMCs.²²

In accepting the Attorney-General’s submissions, Chua J noted that the Applicant’s purported interpretation of Article 49(1) was a legal improbability given that there was no provision in Articles 45 and 46 of the Constitution requiring that the remaining MPs of a GRC had to vacate their seats or were disqualified from holding their seats in the event one of their fellow MPs vacated his or her seat.²³ This is correct insofar as the Constitution is silent on such a contingency occurring whereas s 24(2A) of the PEA²⁴ specifically mentions that the writ of election would only be issued in the event all MPs in a GRC have vacated their seats. To imply another constitutional ground on which an MP’s seat (or a group of MPs in this case) would either be vacated or the MP be disqualified from becoming a Member of Parliament would be tantamount to reading-in additional provisions in the Constitution by the Judiciary in the absence of clear or express words to that effect.²⁵

Chua J further held in favour of the Attorney-General’s interpretation of Article 49(1) on the basis that either an updating or rectifying construction could be applied to Article 49(1) to take into account the subsequent legislative amendments to the Constitution and the Parliamentary Elections Act, thereby allowing for an interpretation of Article 49(1) to mean that by-elections in a GRC would only be possible if all MPs had vacated their seats. ²⁶

An updating construction is first and foremost a rule of statutory interpretation that is meant to provide guidance “as to the legislator’s prima facie intention regarding the legal meaning of the enactment.”²⁷ For an updating construction to take effect, the Act in question must first have been an Act “that is intended to develop in meaning with developing circumstances”.²⁸ Once this has been established, the updating construction operates by presuming that “Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed”.²⁹ In Singapore, the rule of updating construction was first expressly adopted in Comptroller of Income Tax v MT ³⁰ [CIT]. This was in turn cited in Wong Souk Yee with approval,³¹ as part of a three-stage framework (the “CIT Framework”).³²

In applying the CIT Framework to the present case, Chua J determined that since Parliament expressly intended for by-elections in a GRC to be held only in the event that all seats in that GRC had been vacated³³ and had made its intentions manifest by amending the Constitution to include Article 39A, an updating construction could be applied to Article 49(1) to reflect the changes effected by Article 39A.³⁴

B. Difficulties with Applying an “Updating Construction”

With respect, the learned Judge did not appear to have adequately considered the nature of the legislation he was required to interpret in accepting the applicability of the doctrine of updating construction. As previously stated, the presumption of updating construction is a rule of statutory interpretation. It owes its development to the peculiar characteristics of the English legal system, where there exists no written Constitution and the doctrine of Parliamentary supremacy prevails.³⁵ Given such differences between our legal systems, the Singapore courts ought to guard against resorting to ordinary canons of statutory interpretation too quickly in order to interpret a written constitution that proclaims itself to be the supreme law of the land. To infelicitously import rules of interpretation and construction for ordinary statutes wholesale into the realm of constitutional interpretation runs the risk of treating the Constitution as being no different from an ordinary piece of statute, even if such an interpretation is justified as giving effect to the purpose of the affected legislation.³⁶

Even if one accepts that the rule of updating construction can be applied in the context of constitutional interpretation, it is arguable that at the third stage of the CIT Framework, the application of an updating construction to Article 49(1) would itself have entailed a substantive change to the provision. With respect, a constitutional amendment may have been the more desirable solution. As the Court of Appeal in Vellama so held, Article 49(1) in its present form mandates that the Prime Minister has to call by-elections “to fill casual vacancies of elected MPs that may arise from time to time”.³⁷ This mandatory requirement is not subject to qualifications whatsoever on a plain reading of the text. Neither is it reflected in the 1988 Constitutional Amendment that Parliament intended for by-elections in GRCs to be subject to the requirement that all MPs vacate their seats first. Not even Article 39A itself makes any reference to the requirements for by-elections to GRCs, save that they be held only on a “team” basis.³⁸ Furthermore, the PEA’s unique requirements that must be met for a by-election in a GRC are themselves a significant amendment to the existing constitutional provision on by-elections since the departure of one or more MPs from a GRC would not trigger the by-elections mechanism unless every MP has vacated his or her seat. The result is that in practice, Parliamentary vacancies in a GRC would be left unfilled until the remaining MPs’ terms of office ends.

That being the case, the proper remedy would lie with Parliament to amend Article 49 itself to accommodate s 24(2A) of the PEA. As Menon JC observed in CIT, where a “significant legislative change has been effected in the first statute such that its importation into the second statute may have quite substantial effects, the court should ordinarily be slow to apply an updating construction to the second statute”.³⁹

C. Rectifying Construction: A Trojan Horse of Judicial Legislation?

A similar argument may be made about the Court’s willingness to apply a rectifying construction towards Article 49(1). Rectifying construction operates on the basis that “the legislator intends the court to apply a construction which rectifies any error in the drafting of the enactment”.⁴⁰ Its effect is similar to that of an updating construction, and essentially involves the addition or substitution of words into the statute to rectify the error or omission in the legislative drafting. In accepting the Attorney-General’s argument, Chua J reasoned that Parliament’s intention regarding by-elections in GRCs was manifested by the adoption of s 24(2A) of the PEA.⁴¹ That Article 49(1) was not also amended to reflect this change in the law was merely an omission on the Legislature’s part which in no way detracted from the express intention of Parliament.⁴²

With respect, it is still difficult to reconcile Chua J’s holding with the fact that the PEA is itself a piece of ordinary legislation that must inevitably rank below the Constitution in terms of legal hierarchy.⁴³ Constitutional supremacy as reflected in Article 4 mandates that any ordinary legislation that would at first blush be inconsistent with the Constitution ought to rendered void to the extent of the inconsistency unless the Constitution itself has been expressly amended.⁴⁴ S 24(2A) arguably constitutes a marked deviation from the constitutional duty in Article 49 to fill Parliamentary vacancies through the use of elections. It follows that an amendment to Article 49(1) is necessary to reflect this change, and in the absence of such, s 24(2A) is void for inconsistency qua Article 49(1).⁴⁵

Having accepted the Attorney-General’s interpretation of Article 49(1), the High Court proceeded to consider the Attorney-General’s alternative interpretation that Article 49(1) only applied to SMCs and not to GRCs. In agreeing with the Attorney-General’s alternative interpretation, Chua J reiterated his earlier holding that the legislative purpose was clear in that:

“[A]ll elections (including by-elections) in any GRC shall be held on a basis of such number of candidates as designated for that constituency by the President, and no by- election needs to be held to fill any vacancy in a GRC unless all the Members in that GRC have vacated their seats.”⁴⁶

The Attorney-General’s alternative interpretation of Article 49(1) was thus adopted as the correct one that “furthers the legislative purpose”.⁴⁷ Yet it seems unclear whether the legislative purpose that the High Court was referring to was the specific purpose of Article 49(1) or the general purpose of Part VI of the Constitution or even the Constitution as a whole. If Chua J was referring to the specific purpose of Article 49(1), then insufficient consideration was devoted to ascertaining the legislative purpose of Part VI of the Constitution, as per the test in Tan Cheng Bock v Attorney-General⁴⁸ [Tan Cheng Bock]. If, however, the learned Judge was referring to the legislative purpose of Part VI of the Constitution, his definition of the legislative purpose would appear to be an unduly narrow one. One must consider that Part VI deals wholly with the functions, organisation as well as composition of the Legislature of Singapore in its entirety, rather than simply on by-elections alone.⁴⁹

Since the Applicant’s claim could not succeed on her first ground, the High Court proceeded to consider the remaining two grounds underpinning her claim for mandatory orders. However, as the Applicant clarified in her oral submissions, her case was only that a by-election in a GRC had to be called if any seat in the GRC was vacated regardless of whether it was held by an MP belonging to a minority community or otherwise. She thus conceded her second ground that Article 39A(2) of the Constitution requires that a GRC be represented by an MP belonging to a minority community until the dissolution of Parliament.⁵⁰ The High Court further rejected her third ground of argument, that there existed an implied right by voters to be represented by an elected MP of their choice until the dissolution of Parliament.⁵¹

D. The Declaratory Orders

Given that the Applicant’s alternative claim for declaratory orders was founded on similar grounds as her claim for mandatory orders, the High Court rejected the Applicant’s alternative claim for the same reasons that it gave in rejecting the Applicant’s primary claim – namely that the Applicant’s proposed interpretation of Article 49(1) was patently incorrect. ⁵² Nevertheless, this author contends that, given the legal impossibility of the Applicant’s interpretation of Article 49(1) and the inherent risks of applying either an updating or rectifying construction to the Constitution, the irresistible conclusion appears to be that s 24(2A) of the PEA is simply inconsistent with the Constitution and thus void. It is unfortunate that the High Court did not canvass this particular point in greater detail, being content to simply reject it as stemming from the Applicant’s incorrect interpretation of Article 49(1).

IV. Implications for Constitutional Interpretation

Wong Souk Yee appears to reinforce the proposition that in future cases, the purposive approach⁵³ will increasingly become the dominant method of constitutional interpretation.⁵⁴ Coming on the back of the earlier decision of Tan Cheng Bock, which was itself heavily cited in Wong Souk Yee, it would seem that future cases dealing with questions of constitutional interpretation will inevitably concern themselves with attempting to ascertain the purpose of a particular Constitutional provision or a part of the Constitution. Yet, two potential issues have arguably arisen from the present case that necessitate further clarification from the Singapore courts.

Firstly, the apparent willingness of the High Court in Wong Souk Yee to resort to interpretive doctrines for ordinary legislation in interpreting the Constitution intimates their general applicability across different types of legislative instruments. It is true that Tan Cheng Bock itself appeared to accept the applicability of such rules in the context of constitutional interpretation.⁵⁵ However, care must be taken against bluntly importing these rules into the separate realm of constitutional interpretation, especially since they were developed by the Courts in common law, and intended for ordinary statutes. A liberal use of such rules and canons runs the risk of the courts straying into the field of constitutional amendment under the guise of interpretation, especially if such rules have the practical effect of injecting additional words and expressions into the Constitution when none previously existed. Further clarification from the Court of Appeal as to the ambit and applicability of these rules would be greatly welcomed.

Secondly, this increasing acceptance of the purposive approach as the primary method of constitutional interpretation poses a corollary question: whether the alternative rights-based approach, as laid out in the long line of cases stretching from Minister of Home Affairs v Fisher ⁵⁶ [Fisher] to Ong Ah Chuan v Public Prosecutor ⁵⁷ [Ong Ah Chuan] and then to Taw Cheng Kong (which cited both Fisher and Ong Ah Chuan with approval), will continue to be of any particular relevance in field of constitutional law. It will be recalled that in Ong Ah Chuan, which cited Fisher and referred to the Singapore Constitution, the Privy Council held that “the way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but “as sui generis, calling for principles of interpretation of its own, suitable to its character...without necessary acceptance of all the presumptions that are relevant to legislation of private law””.⁵⁸

It is arguable that if the so-called sui generis approach in Ong Ah Chuan were applied to the present case, a different result might have been reached by the High Court with regards to the interpretation of Article 49(1). Presumably, the Applicant’s argument that there existed an implied right to representation within the Constitution would’ve been accorded more weight in determining the proper construction of Article 49(1).

While Ong Ah Chuan was decided before the purposive approach was expressly adopted as part of Singapore law, it remains good law nevertheless and presents a possible alternative approach towards constitutional interpretation. However, it will be necessary to re-examine whether the so-called sui generis approach in Ong Ah Chuan ought to remain part of Singapore case law in light of the increasing resort to the purposive approach in constitutional interpretation.

V. Conclusion

Wong Souk Yee sought to address the latent ambiguity surrounding the scope of the by-elections clause in Article 49 of the Constitution vis-à-vis the GRC scheme by holding that the provision could be updated or rectified to incorporate changes made elsewhere to existing electoral law. While the High Court’s conclusion appears to be technically correct based on the express wording of existing legislation regarding Parliamentary elections as well as an unduly broad application of the purposive approach in interpreting Article 49(1), the reasoning of the High Court has arguably opened a can of worms regarding the proper interpretation of constitutional provisions. The decision also runs a noticeable risk of undermining the very notion of constitutional supremacy. While it remains to be seen whether an Appeal will be brought, further clarification from the Court of Appeal as to the abovementioned points of contention would be greatly welcome.

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[1] [2013] 4 SLR 1; [2013] SGCA 39.

[2] Constitution of the Republic of Singapore (1999 Rev Ed), art 49.

[3] Supra note 1 at [82].

[4] Ibid at [80] and [82].

[5] [2018] SGHC 80.

[6] Ibid at [3].

[7] Royston Sim, “Halimah Yacob steps down as Speaker and MP, resigns from PAP to run for President”, The Straits Times (7 August 2017), online: <https://www.straitstimes.com/politics/halimah-yacob-steps-down-as-speaker-and-mp-resigns-from-pap-to-run-for-president>.

[8] Valerie Koh & Kenneth Cheng, “3 remaining Marsiling-Yew Tee GRC MPs to build on Halimah’s good work”, TODAYonline (7 August 2017), online: <https://www.todayonline.com/singapore/3-remaining-grc-mps-build-halimahs-good-work>.

[9] Cap 218, 2011 Rev Ed Sing.

[10] Supra note 5 at [4].

[11] Ibid.

[12] Supra note 2 at art 49(1).

[13] Ibid at art 39A(2).

[14] Supra note 5 at [12].

[15] Constitution of the Republic of Singapore (Amendment) Act, No 3 of 1988, amending Constitution of the Republic of Singapore (1985 Rev Ed).

[16] Constitution of the Republic of Singapore (Amendment) Act, No 16 of 1984, s 5, amending Constitution of the Republic of Singapore (1980 Reprint), Art 49.

[17] Constitution of the Republic of Singapore (1980 Reprint).

[18] Supra note 5 at [9].

[19] Ibid at [14].

[20] Supra note 2 at arts 45 and 46.

[21] Supra note 9 at s 27A.

[22] Supra note 5 at [16]–[18].

[23] Ibid at [23]–[26].

[24] Supra note 21 at s 24(2A).

[25] On the dangers of unduly expanding the scope of or implying into the Constitution additional interpretations, see Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR(R) 10; [1998] SGHC 2 at [19].

[26] Supra note 5 at [27].

[27] FAR Bennion & Oliver Jones, ed, Bennion on Statutory Interpretation: A Code, 6th ed (London, UK: LexisNexis, 2013) at 797.

[28] Ibid.

[29] Ibid.

[30] [2006] 3 SLR(R) 688; [2006] SGHC 120.

[31] Supra note 5 at [28]–[29].

[32] Supra note 30 at [46]–[47].

[33] Supra note 5 at [36]; see also Parliamentary Debates Singapore: Official Report, vol 50 at cols 334–335 (12 January 1988) (Mr Goh Chok Tong).

[34] Ibid at [33]–[38].

[35] As expressly acknowledged in Bennion, supra note 27 at 167.

[36] See VK Rajah, SC, “Interpreting the Singapore Constitution” in Jacyln L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (New York: Routledge, 2017) 23 at 24.

[37] Supra note 1 at [82].

[38] Supra note 2 at art 39A(2)(c).

[39] Supra note 30 at [48].

[40] Supra note 27 at 788.

[41] Supra note 5 at [41].

[42] Ibid.

[43] Halsbury’s Laws of Singapore, vol 1 (Singapore: LexisNexis, 2017 Reissue) at 100, para 10.506.

[44] Supra note 2 at Art 4. See also Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR(R) 209; [1994] SGHC 207 at [50] and Taw Cheng Kong v Public Prosecutor [1998] 1 SLR(R) 78; [1998] SGHC 10 [Taw Cheng Kong] at [14] for judicial recognition of the doctrine of constitutional supremacy.

[45] While no statute passed by Parliament has ultimately been held unconstitutional by the courts, there nevertheless exists judicial precedent for such an approach: see Taw Cheng Kong, ibid, at [84].

[46] Supra note 5 at [47].

[47] Ibid at [49].

[48] Tan Cheng Bock v Attorney-General [2017] 2 SLR 850; [2017] SGCA 50 at [41].

[49] This can be contrasted with Vellama, supra note 1 at [79], where the Court of Appeal interpreted Article 49(1) with reference to the broad purpose of the Constitution in establishing a Westminster model of government with a right to representation.

[50] Supra note 5 at [52]–[53].

[51] Ibid at [57].

[52] Ibid at [59]–[60].

[53] Interpretation Act (Cap 1, 2002 Rev Ed), s 9A; see also Constitution of the Republic of Singapore (1999 Rev Ed) at art 2.

[54] Some commentators have welcomed this unified approach for both constitutional and statutory interpretation: see Goh Yihan, “The Interpretation of the Singapore Constitution: Towards a unified approach to interpreting legal documents” in Jaclyn L Neo, supra note 36, 257 at 276.

[55] Supra note 48 at [38].

[56] [1980] AC 319.

[57] [1979-1980] SLR(R) 710; [1980] SGPC 6.

[58] Ibid at [23].

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Considerations in an Autonomous Era

The PDF version of this article can be found here.

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Considerations in an Autonomous Era

Keith Wong

Enter the autonomous age. Once the far-flung conception of a childhood storybook, the entry of autonomous technology into our daily lives is now becoming a common reality. Amid the dazzle of such innovative wonder, prudence warrants that we consider how to manage liability and ethics when things turn awry. With increasing adoption of autonomous technology, is the law capable of contending with a shift to this age? In this article, an assessment of potential manufacturer’s liability will be examined.

The accepted taxonomy for the classification of autonomous vehicles has been categorized into six different stages.¹ This is outlined in the diagram below:²

As reproduced from Mr. Brian Buntz's article on the Internet of Things Institute. All rights in this photograph belong to him.

At the highest level, vehicles operate at full automation, with limited to no driver intervention required in moving from point A to point B. Most vehicles presently on the road function at the lower end of this operating spectrum instead, requiring significant driver intervention.

However, an increasing range of vehicles available for sale have crept up the spectrum, offering assistance to drivers at Levels 1 and 2. For example, some vehicles are able to rely on radar sensors to navigate into parallel parking lots, while others offer adaptive cruise control and automatic emergency braking.

In the past few months, videos of vehicles equipped with highly autonomous functions have surfaced. They depict consumers, who purchased these vehicles from a particular American manufacturer, taking leisurely naps at the wheel, or in some cases leaving the driver’s seat vacant while the car is in operation. It invariably begs the question – what happens when an accident occurs?

In 2016, a nuTonomy driverless vehicle collided into a lorry at one of the firm’s testing grounds. This was headlined as the first accident in Singapore involving an autonomous vehicle. In a report, the Straits Times pointed to software glitches which affected how the vehicle detected and responded to other vehicles in the vicinity.³ As this issue was subsequently resolved, there was no need for a case to be raised.

Given the complex nature of such technology and its current, limited commercial availability, such a concern has yet to be highlighted by our local courts. In due time however, a number of considerations are likely to arise in regard to this field.

I. HOLDING A MANUFACTURER LIABLE FOR NEGLIGENCE

From a consumer’s standpoint, a selling point for autonomous technology lies in the data collected by the manufacture and the software developed for each product. What distinguishes one manufacturer’s product from the next is the sophistication and unique qualities offered. In other words, an autonomous vehicle is only as good as the manufacturer has programmed it to be.

The concept of a duty of care can be traced back to Donoghue v Stevenson⁴ [Donoghue], as well as the earlier case of Heaven v Pender⁵ [Heaven]. The cases themselves are black letter, but what is significant in Heaven lies in Brett MR’s assessment⁶ that established an obligation between persons in the absence of a contract between them. Lord Atkin built upon this proposition in Donoghue with the notion of the neighbour principle. This cemented the existence of a duty of care between a manufacturer and a consumer, premised on the concept of persons who are so closely and directly affected by the act that the manufacturer ought reasonably to have them in contemplation. Clearly, the same principles are likely to apply to the relationship between manufacturers and purchasers of autonomous vehicles.

In Singapore, the landmark decision of Spandeck Engineering v Defence Science & Technology Agency⁷ establishes the local approach in determining whether a duty of care exists. At the threshold stage, factual foreseeability of harm arising from the defendant’s negligence is first evaluated. This is followed by an assessment of proximity and nexus between parties. In the subsequent case of Anwar Patrick Adrian v Ng Chong & Hue LLC⁸, the Court expanded the range of proximity factors to recognize knowledge, control, vulnerability, assumption of responsibility and reliance, as suggested by Professors David Tan and Goh Yihan.⁹ Finally, policy concerns have a determinative role in whether the imposition of a duty of care is negated.

In assessing the local position on a duty of care in relation to a consumer’s claim against a manufacturer, the presence of a proximate relationship is likely uncontentious. However, the position on policy is likely to be probative with reasons both in favour of and against imposing a duty of care on manufacturers of autonomous vehicles.

At present, Singapore takes a favourable position toward research and innovation. This is reflected by strong investment in innovation from both the public and private sector, such that “Singapore’s [Research and Development] efforts have led it to be consistently ranked in the top 10 in the Global Innovation Index.”¹⁰ Given this stance, policy may negate the imposition of a duty of care on manufacturers, in order to encourage innovation in a sandbox environment.

However, a comparative examination illustrates a variance in legislative attitudes toward liabilities arising from autonomous vehicles. Europe has launched several initiatives relating to Connected and Automated Driving.¹¹ In Belgium, liability on the part of the car manufacturer may be civil or even criminal, such that both the company and its directors may be prosecuted.¹² A contrasting approach to liability has been taken on the other side of the globe. Recent amendments to the California Department of Motor Vehicles removed Section 227.38(b), which originally read:

“The manufacturer certifies that, to the extent the manufacturer’s autonomous technology causes the autonomous vehicle to be at fault in a collision, the manufacturer shall assume liability for damages caused by the autonomous vehicle in such collision, but subject to applicable law.”¹³

The subsequent amendment to excise part of this clause suggests that existing liability laws in California will apply instead, as no indication is given as to whether manufacturers assume liability for damages caused by autonomous vehicles. However, it is key to note that this regulation applies to driverless testing and public use rules for developing autonomous vehicles. As the focus is on the testing and development stage, it is thus appropriate to consider what may apply to products already available for purchase. Consequently, the lack of a global standard and its various ambiguities, raises the need to consider what may develop in our local environment.

Even with a duty present, the standard of care expected of makers of autonomous vehicles is also open at law. Typically, the standard of care is an objective assessment of what a reasonable person would do in the circumstance. This applies well in cases of negligence arising from human error or oversight. However, the multiplicity of benchmarks for the performance of autonomous vehicles suggests that unanimity on the applicable standard is yet settled.

Across the board, imposing a high standard of care for operators of vehicles has been a relevant policy consideration. From the traditional position reflected in Nettleship v Weston¹⁴ to the more recent case of Ng Keng Yong v PP,¹⁵ factors such as inexperience have failed to reduce the requisite standard of care. In Singapore, this posture has been further emphasized in Public Prosecutor v Hue An Li¹⁶. In his written judgment, Sundaresh Menon CJ reiterated the high standard of care expected,¹⁷ stressing determinedly that “[t]he starting point for sentencing in a s 304A(b) traffic death case is a brief period of incarceration for up to four weeks.”

Admittedly, the lack of global unanimity begs the question as to what standard manufacturers of autonomous vehicles should be subject to. Manufacturers might prefer a subjective standard as it allows for a more flexible approach to product development, but this tugs against the generally-accepted benchmark of an objective, reasonable manufacturer. Even this objective benchmark is left open for determination: while features such as reliability and functionality would generally be expected of traditional automobiles in the eyes of consumers, there is no global industry standard for autonomous vehicles on this front. This is likely to span a host of future dispute between policy makers and manufacturers. It probes at an incipient tension between protecting consumers by way of a higher objective standard, against a more relaxed approach which encourages innovation. As suggested by this article, one solution to address such ambiguity in the law, may be to draft legislation tailored to address such concerns.

II. CONTRACTUAL LIABILITIES OF A MANUFACTURER

A duty to take care in programming is likely to arise alongside other implied contractual warranties provided for by legislation in the Sale of Goods Act.¹⁸ Attempts to hold manufacturers liable will also likely be met with attempts to reduce or exclude liabilities, which also raise concerns as to whether statutes such as the Unfair Contract Terms Act¹⁹ [UCTA] apply. For example, dealers with Level 1 and Level 2-type vehicles for sale often require buyers to sign an exclusion of liability form, absolving them from liability in the event that the technology fails to act as it should. In determining whether a term of the contract has been breached, it is also appropriate to look for any warranties given by the manufacturer on how their product is meant to operate. Should negligent programming on the part of the manufacturer result in the causing of death or personal injury however, UCTA, as well as the contra proferentem rules suggest that such liability cannot be indemnified against.

III. POSSIBLE DEFENCES

What then happens, when a driverless vehicle operating at the higher end of the autonomous spectrum meets with an accident due to its own erroneous calculations?

From a manufacturer’s point of view, this raises a possible defence of novus actus interveniens on the part of the driver in the law of tort. It is, for instance, at least arguable that a consumer’s recklessness by sleeping in the driver’s seat while the vehicle functions in autonomous mode on a congested expressway is so wholly unreasonable that it amounts to a novus actus interveniens. Admittedly, this is a slippery slope, given that the trajectory of autonomous vehicles aims to be less dependent on human intervention. Hence, this area of the law is certainly one to watch, given the impending arrival of this technology and the inevitability of such a claim.

IV. CRIMINAL LIABILITIES OF THE MANUFACTURER AND OTHER ETHICAL CONSIDERATIONS

Shifting back to the scene of an accident, matters become more complicated when the circumstance develops to value human life. How would an autonomous vehicle contend with ethical choices, such as the dilemma of saving many at the expense of the few? In response to this trolley problem,²⁰ Professor Reich has questioned whether autonomous vehicles will “[o]ptimize for overall human welfare” when faced with the need to prioritize one human life over the other.²¹

Separately, this raises an interesting question in relation to the provisions of the Penal Code.²² As indicated by the preliminary section of the wording and scope of the Penal Code, the provisions criminalize the acts of natural and legal persons. In an extreme scenario that an autonomous vehicle runs over a pedestrian, applying many provisions of the Penal Code would stretch the realm of reality. This prompts for future development of the Penal Code, and encourages the drafting of more statutes pertaining to advanced technology.

Outside of the Penal Code, one such example has been the development of the Cybersecurity Bill,²³ in response to concerns brought about by the Fourth Industrial Revolution. As technology continues to disrupt the traditional world we know, the spill-over effects into the legal system demands changes that keep pace with the steep learning curve. This is especially in light of the progressively symbiotic relationship that autonomous technology and artificial intelligence will share with human beings.

V. REGULATION

One response to increasing developments in this field has been in regulation via the Road Traffic Amendment in 2017.²⁴ This amendment addressed the testing of autonomous vehicles in Singapore, and paves the path toward future regulation and development governing the operation of autonomous technology. With Singapore poised as a technologically adept society, continued emphasis in this area of the law can encourage local growth in this field, while placing Singapore as an attractive hub for future innovation.

VI. REFLECTION

While this article merely scratches the tip of the iceberg, such concerns are likely to become increasingly prevalent. With the rise of autonomous technology and a growing global investment in artificial intelligence, the time is ripe to re-assess traditional areas of the law. On the cusp of the Fourth Industrial Revolution, the opportunities and need to be familiar with changing technology are certainly pressing. Appropriately, this encourages lawyers (and lawyers-to-be) to address and to understand the growing demands in this area.

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[1] On-Road Automated Driving Committee, “Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles”, SAE International (30 Sep 2016), online: < http://standards.sae.org/j3016_201609/> (accessed 2 Jan 2018).

[2] Brian Buntz, “What are the 5 Levels of Autonomous Driving?”, Internet of Things Institute (22 Aug 2016), online: <http://www.ioti.com/transportation/what-are-5-levels-autonomous-driving> (accessed 2 Jan 2018).

[3] Zhaki Abdullah, “‘Software Anomalies’ to Blame for Driverless Car Accident”, The Straits Times (25 Nov 2016), online: <http://www.straitstimes.com/singapore/software-anomalies-to-blame-for-driverless-car-accident> (accessed 2 January 2018).

[4] M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562.

[5] (1883) 11 QBD 503.

[6] Ibid, at p 507.

[7] [2007] 4 SLR(R) 100.

[8] [2014] 3 SLR 761.

[9] In “The Promise of Universality: The Spandeck Formulation Half A Decade On” [2013] 25 SAcLJ 510.

[10] Lim Chuan Poh, “From Research to Innovation to Enterprise: The Case of Singapore” in Soumitra Dutta, Bruno Lanvin, and Sacha Wunsch-Vincent, eds, The Global Innovation Index 2016 (World Intellectual Property Organization) 133 at 138.

[11] Matthieu Relange, “At a Glance: Autonomous Vehicles, EU”, Bird & Bird (25 July 2017) < https://www.twobirds.com/en/news/articles/2017/global/at-a-glance-autonomous-vehicles> (accessed 04 March 2018)

[12] Jaward Aadel, “At a Glance: Autonomous Vehicles, Belgium”, Bird & Bird (25 July 2017) < https://www.twobirds.com/en/news/articles/2017/global/at-a-glance-autonomous-vehicles> (accessed 04 March 2018)

[13] Cal. Code Regs. tit. 13, § 227.38(b), as indicated in the Second Modified Express Terms (California: Department of Motor Vehicles) at p 11, online: <https://www.dmv.ca.gov/portal/wcm/connect/aa08dc20-5980-4021-a2b2-c8dec326216b/AV_Second15Day_Notice_Express_Terms.pdf?MOD=AJPERES> (accessed 4 March 2018)

[14] [1971] 2 QB 691.

[15] Ng Keng Yong v Public Prosecutor and another appeal [2004] 4 SLR(R) 89.

[16] [2014] 4 SLR 661.

[17] Ibid, at [61].

[18] Cap 393, Rev Ed 1999.

[19] Cap 396, Rev Ed 1994.

[20] As raised by Professor Taylor Reich in Alex Shashkevich, “Stanford Scholars, Researchers Discuss Key Ethical Questions Self-Driving Cars Present”, Stanford University (22 May 2017), online: <https://news.stanford.edu/2017/05/22/stanford-scholars-researchers-discuss-key-ethical-questions-self-driving-cars-present/> (accessed 2 January 2018)

[21] Ibid.

[22] Cap 224, Rev Ed 2008.

[23] Bill No. 2 of 2018.

[24] Road Traffic Act (Cap 276, 2004 Rev Ed Sing), as amended by the Road Traffic (Amendment) Act No. 10 of 2017.

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Being Seaworthy in Singapore: A brief critique of Article 14 of the Rotterdam Rules

The PDF version of this article is available here.

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Being Seaworthy in Singapore: A brief critique of Article 14 of the Rotterdam Rules

Tan Kah Wai

I. INTRODUCTION

It was Lord Diplock who once described the seaworthiness obligation as one of the “most complex of contractual undertakings”.¹ If the waters of seaworthiness were already not rocky enough, Art 14 of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea² [Rotterdam Rules] just complicates matters further by extending this nebulous obligation throughout the voyage itself. This brief paper seeks to elucidate the legal implications that Art 14 of the Rotterdam Rules has on the seaworthiness obligation in shipping law. Particular regard is given to discussing the adverse effect on Singapore’s position as an international maritime hub should she choose to adopt the rules.³

For ease of reference, Article 14 of the Rules is set out as follows:

“The carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to:

(a) make and keep the ship seaworthy;

(b) Properly crew, equip and supply the ship and keep the ship so crewed, equipped and supplied throughout the voyage and

(c) Make and keep holds and all other parts of the ship in which the goods are carried, and any containers supplied by the carrier in or upon which the goods are carried, fit and safe for their reception, carriage and preservation.”

II. SINGAPORE’S CURRENT POSITION

First, the carrier has an absolute obligation in common law to keep the ship seaworthy at the commencement of the voyage.⁴ However if the carriage contract is subject to Art 3.1 of the Hague-Visby Rules⁵ [HVR], the carrier is only bound to make the ship seaworthy by exercising due diligence. Art 4.1 of the HVR also makes it clear that carriers cannot contract out of this overriding and non-delegable obligation. These qualifications constitute the local position by virtue of the HVR’s inclusion under the Schedule of the Carriage of Goods by Sea Act.⁶

The duty of seaworthiness encompasses the following aspects:

1. Ensuring that the vessel is structurally fit for the intended voyage;⁷
2. Providing sufficient manpower and equipment, and ensuring that the vessel’s crew have an acceptable level of competence;⁸
3. Providing relevant documentation and charts,⁹ especially those concerning health and safety;
4. Ensuring that the ship is reasonably fit to receive and carry the cargo.¹⁰

In determining seaworthiness, the Singapore courts have consistently held that it is a relative standard that varies according to the ship and exigencies of the voyage.¹¹ A seaworthy vessel is one that is as fit as ordinary owners would expect to have when the vessel commences its voyage. For the courts, this is an objective test that asks whether a prudent owner having known of the defect, would require it to be remedied before the ship is sent to sea.¹² The burden of proof for seaworthiness first rests on the claimants.¹³ However where claimants can prove that there is damage or loss, a presumption of unseaworthiness may arise on the facts. The evidential burden thus shifts to the carrier to prove that he did his due diligence in keeping the ship seaworthy.¹⁴

III. ARTICLE 14 OF THE ROTTERDAM RULES AND ITS JUSTIFICATIONS

The Rotterdam Rules were enacted to achieve a few aims:

1. Updating of international carriage rules to align it with technological developments;
2. Harmonization of international trade, in particular, achieving broad uniformity in the law governing international carriage of goods; and
3. Balancing both commercial and national interests.¹⁵

It is in this spirit that the drafters hoped to adopt an appropriate legal framework for carrier’s duties that the shipping industry would find acceptable.¹⁶

At first glance, Art 14 of the Rotterdam Rules largely replicates HVR’s Art 3.1. However, by adding the words “and during the voyage”, it extends the duty of keeping the ship seaworthy to one that is throughout the voyage. The courts thus now have to ask an additional question: Would a prudent shipowner being aware of the defect have continued this voyage without undertaking any possible repairs?¹⁷

Under the HVR, the seaworthiness obligation was limited to before the voyage’s commencement. The assumption back then was that carriers had no control over the vessel once it has sailed. These assumptions are no longer relevant clearly since there is satellite technology that allows permanent communication between vessels on the sea and their offices at the shore.¹⁸ By extending the obligation of seaworthiness, Art 14 of the Rotterdam Rules reflects a change in modern circumstance where carriers now have a greater level of control over ships after commencement of voyage.¹⁹

Another justification for imposing this continuous obligation is that it would be consistent with the carrier’s public obligations under Articles 6 and 10 of the International Safety Management Code, which stipulate that the ship must be crewed, equipped and maintained properly throughout the voyage.

Yet one must ask whether there is a purpose undergirding the drive for consistency here. If achieving consistency is to ensure compliance with public obligations, then it is strictly unnecessary since this compliance can be very well achieved by regular inspections from the public authorities. Under Singapore’s Merchant Shipping Act,²¹ the Maritime Port Authority (“MPA”) of Singapore’s surveyors can undertake Flag State Control Inspections, which allows them to inspect and verify the ship’s safety management systems.²² The MPA is also entitled to arrest ships for any non-compliance with safety regulations.²³

A third justification rests on the fact that the concept of continuous obligation is already part of commercial practice.²⁴ For example, most time charterparties contain clauses like the NYPE 93 Form Clause 6, which stipulates a continuous obligation to provide a seaworthy vessel.²⁵

However, this justification does not stand as it ignores the fact that this additional clause is often omitted in voyage charterparties for good commercial reasons. Shipowners in time charterparties enjoy security of income throughout the charter period since charterers are responsible for finding the ship’s commercial employment and payment of hire.²⁶ However in voyage charterparties, the carrier pays virtually everything except for delays at loading and discharge ports. If Art 14 extends this continuous obligation to voyage charterparties, it imposes far more onerous obligations on carriers who must now undertake extra expenses to ensure the ship’s seaworthiness throughout the voyage.

IV. WHY ARTICLE 14 SHOULD NOT BE ADOPTED IN SINGAPORE

A. It does not indicate when the Obligation of Seaworthiness ends

Firstly, Art 14 imposes a continuous obligation to keep the ship seaworthy without indicating to parties when this duty ends. The Rules only state that this duty persists “during the voyage” but remains silent on when does the voyage end.

Hence, Aladwani raises the following scenarios where the voyage may end:²⁷

1. When it enters the port’s geographical and legal area;
2. When it anchors at a place where vessels lie while waiting for berth at a port; or
3. Discharge of the cargo from the vessel itself. For a set of international rules that seek to introduce obligations unique to the common law, it is difficult to see why Art 14 fails to define a precise point at which the seaworthiness obligation would end. This is clearly unsatisfactory because it diminishes commercial certainty, which is acknowledged by the courts as an important consideration in international trade.²⁸

B. It generates problems of evidentiary proof

Secondly, Art 14 presents practical problems in ensuring a continuous obligation for seaworthiness. This is especially when ships experience problems in the middle of the voyage, which is a frequent occurrence. While the drafters have acknowledged these concerns, they thought that such concerns would be resolved by stating that the obligation is fulfilled once a standard of due diligence is satisfied.²⁹

However, just simply stating a due diligence standard does not remove the carriers’ evidential difficulties. Carriers still bear the burden of proving that they fulfilled their due diligence obligation of keeping the ship seaworthy throughout the voyage.

To illustrate these difficulties, consider the case where a ship sinks without collision or inclement weather. A res ipsa loquitur inference would be drawn that the ship is unseaworthy during the voyage.³⁰ The carrier bears the burden of disproving this presumption. Yet, it cannot rely on the surveyors’ certification of the ship’s safety before the voyage. This is because claimants will frame the duty breached here as one where the ship is not seaworthy during the voyage, rather than it being unseaworthy before the voyage commences. Even if the carrier claims that the ship is unseaworthy due to a latent defect, it is still difficult to prove such defects where the ship has been wrecked.

C. Complying with Art 14 breaches other articles of the Rotterdam Rules

An example here would suffice to illustrate this point. A Carrier that seeks to repair the ship during the voyage may delay the cargo delivery in doing so. He has two options. If he chooses to delay the carriage, he may face liability under Art 21 of the Rules. On the other hand, he faces liability under Art 14 if he chooses not to remedy the defect. As Tsimplis has observed, the Carrier is ensnared in an absurd Catch-22 situation where it is liable either way.³¹

D. Art 14 has negative practical implications on all commercial parties in the shipping industry

Ironically, Art 14 can hardly be justified as one that enhances cargo interests in light of its aforementioned risks and commercial reality. the commercial realities would defeat any justification of Art 14 as one that enhances cargo interests. Carriers will take potentially cost- inefficient measures to ensure the ship’s seaworthiness, which translates to higher freight costs for shippers.³²

While academics have assumed that the standards for due diligence under Art 14 is different at port than at sea,³³ such assumptions provide scant comfort for risk-averse insurers.³⁴ The travaux préparatoires as an interpretive tool for Art 14 is incapable of assisting us in determining these standards.³⁵ In response to such heightened exposure in liability and risk of protracted litigation over what constitutes a breach of Art 14, insurers would likely raise insurance premiums for carriers. Carriers would, in turn, transfer these costs to shippers through higher freight rates.³⁶ The result is far more commercially undesirable – a chilling of shippers’ demand for carriage services in a bearish market. Just last year, it has been observed that the fleet supply is already far excess of what has been sluggish demand, with liner companies being forced to actively restructure themselves to steady their costs.³⁷

While this snowball effect has yet to be empirically proven, it is clear that insurers and carriers would prefer the pre-Rotterdam position. There were no obligations to keep the ship seaworthy throughout the voyage, having to resolve this legal question before the courts.

E. It impedes Singapore’s growth as a Maritime Legal Services Hub

Although shipping lines have expressed support for the Rotterdam Rules,³⁸ it would be naive to assume that their support is unequivocal when it goes against their own commercial interests.

Shippers and carriers do engage in forum shopping to obtain a limitation of liability regime that is most advantageous to their case.³⁹ Hence, it makes commercial sense for carriers to prefer forums where the HVR applies, rather than forums adopting Art 14 of the Rotterdam Rules that impose this continuing and uncertain obligation. This explains why none of the top 5 shipping centres in the 2017 Xinhua-Baltic International Shipping Centre Development Index (“Baltic Exchange Index”) including Singapore have taken the plunge and signed the Rotterdam Rules. Nations are refusing to ratify the rules until major trading nations have done so⁴⁰ precisely because they fear a loss of business due to forum shopping.

Furthermore, despite Singapore being the top shipping centre in the Baltic Exchange Index, she only enjoys a minor share of the international maritime legal services market.⁴¹ There is little merit in adopting Art 14 now, where it may unnecessarily impede Singapore’s competitiveness and growth as a maritime legal services hub.

V. CONCLUSION

This paper has sought to demonstrate how Art 14 is functionally incoherent, lacks sensible commercial justification, and may even jeopardize Singapore’s maritime industry. The local maritime industry is already facing some challenging times ahead. Hence, it would be prudent for Singapore to consider carefully if she ultimately wishes to adopt the Rotterdam Rules.

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[1] Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26, at 71

[2] 23 September 2009, A/RES/63/122

[3] The Rotterdam Rules have been controversial in many aspects, but this paper will focus solely on Art 14 for the sake of brevity.

[4] Sunlight Mercantile Pte Ltd and another v Ever Lucky Shipping Co Ltd [2003] SGCA 47, [12].

[5] International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 25 August 1924, 120 LNTS 187 (entered into force 2 June 1931)

[6] Cap 33, 1998 Rev Ed Sing.

[7] Zuellig (Gold Coin Mills) v Autoly (Owners) [1968-1970] SLR(R) 829; [1970] SGHC 17.

[8] Tan Lee Meng, The Law in Singapore on Carriage of Goods by Sea, 2nd ed (Butterworths, 1994) at 70-71.

[9] Alfred C Toepfer Schiffahrtsgesselschaft GmbH v Tossa Marine Co [1985] 2 Lloyd’s Rep 325, at 331.

[10] McFadden v Blue Star Line [1905] 1 KB 697, at 704.

[11] Malayan Motor & General Underwriter (Pte) Ltd v MH Almojil [1981-1982] SLR(R) 432; [1982] SGCA 3, at [26].

[12] Ever Lucky Shipping Co Ltd v Sunlight Mercantile Pte Ltd [2003] SGHC 80.

[13] The “Reunion” [1983-1984] SLR(R) 141; [1983] SGHC 12, at [30].

[14] The “Patraikos 2” [2002] SGHC 103, [133].

[15] See generally Sturley, “General Principles of Transport Law and the Rotterdam Rules” in Guner-Ozbek (ed), The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea: An Appraisal of the “Rotterdam Rules (Springer, 2011) at 63-85.

[16] Nikaki, The Carrier’s Duties Under the Rotterdam Rules: Better the Devil You Know? (2010) 35:1, Tul Mar LJ 13.

[17] Nicholas, “The Duties of Carriers under the Conventions: Care and Seaworthiness” in D Rhidian Thomas (ed), The Carriage of Goods by Sea under the Rotterdam Rules (Lloyd’s List, 2010) at 6.14.

[18] Schoenbaum and Yiannapoulos, Admiralty and Maritime Law: Cases and Materials (The Michie Company, 1984) at 14-15.

[19] Nikaki and Soyer, “A New International Regime for Carriage of Goods by Sea: Contemporary, Certain, Inclusive and efficient, or just another one for the shelves?” (2012) 30 BJIL 303 at 329.

[20] United Nations Commission on International Trade Law [UNCITRAL], Report of Working Group (Transport Law) on the work of its twelfth session (Vienna, 6-17 October 2003), at [149].

[21] Merchant Shipping Act (Cap 179, 1996 Rev Ed Sing).

[22] Ibid, s 205.

[23] Ibid, s 207.

[24] Defossez, “Seaworthiness: The Adequacy of the Rotterdam Rules Approach”, (2015-2016) 28:2 USF Mar LJ, at 247.

[25] Girvin, Carriage of Goods by Sea, 2nd ed (Oxford University Press, 2011), at 24.25.

[26] Ibid, at 1.45.

[27] Aladwani, The Supply of Containers and “Seaworthiness – The Rotterdam Rules Perspective, 42:2 J Mar L & Com Journal of Maritime Law & Commerce 185 at 200.

[28] See for instance, Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, at [13].

[29] Supra note 18.

[30] A similar inference was raised in Ajum Goolam Hossen & Co v Union Marine Insurance [1901] AC 362.

[31] Tsimplis, “Obligations of the Carrier” in Baatz, Debattista et al (eds), The Rotterdam Rules: A Practical Annotation (Informa Law, 2009) at 14-06.

[32] Supra note 25 at 27.61.

[33] Supra note 31 at 14-03.

[34] Efthymiou, “Speech delivered by the President of the Union of Greek Shipowners” in CMI Yearbook 2009 Annuaire, Athens II, Documents of the Conference (CMI, 2009) at p 293.

[35] For it to be useful, it must clearly and indisputably point to a definite legal intention. See Fothergill v Monarch Airlines Ltd [1981] AC 251, at 278C.

[36] Supra note 34 at p 294.

[37] Baltic Exchange, “Xinhua-Baltic International Shipping Centre Development Index 2017” (Xinhua-Baltic Exchange, 2017) at 10.

[38] Supra note 15 at pp 76-77.

[39] Hare, “Shopping for the Best Admiralty Bargain” in Martin Davies (ed.), Jurisdiction and Forum Selection in International Maritime Law: Essays in Honour of Robert Force, (Kluwer, 2005) at p 163.

[40] Sturley, “The Rotterdam Rules in Beijing” in CMI Yearbook 2013 Annuaire, Beijing II, Documents of the Conference (CMI, 2013) at p 266.

[41] Supra note 37 at p 61.

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From Tragedy to Statistic: How Big Data has Changed the Practice of Law

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

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From Tragedy to Statistic: How Big Data has Changed the Practice of Law

Bryont Chin

Data is information, and information never stops growing. In 2012, 2.5 exabytes¹ of data were generated every single day.² 90% of the data in the world today has been created in the past two years.³ In Singapore, there is currently scant regulation pertaining to cybersecurity and data use. The Personal Data Protection Act⁴ and the Computer Misuse and Cybersecurity Act⁵ are the Legislature’s responses to these issues. These are mainly focused on preventing and penalizing cybercrime, especially intrusions into important government and private networks. However, while hacking is undoubtedly a perennial concern, in recent years many have asked another important question: how should the law respond to the increasing importance of big data and data analytics?

The term “big data” has been variously defined, but it centrally refers to “extremely large data sets that may be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions”.⁶ Multinational companies and governments can collect these data sets, analysing them to generate insights which cannot typically be gleaned through traditional data analysis. Data collection, storage, and analysis is a field that is growing very important very quickly: according to International Data Corporation, a market intelligence and analytics firm, worldwide revenues for big data and business analytics will grow from $130.1 billion in 2016 to more than $203 billion in 2020.⁷

I. ACCELERATING LEGAL PRACTICE

The meteoric rise in importance of this field has smashed existing practices in law firms. Legal practice is one of the most information-heavy industries, with the huge volume of precedent cases, regulations, case analyses, and legal commentaries. It used to be common to see armies of lawyers and paralegals sifting through information as part of due diligence. For the discovery process in United States v. CBS Inc.,⁸ the studios examined six million documents for more than $2.2 million—much of it going to lawyers and paralegals who worked for months at high hourly rates.⁹ But that was in 1978. Today, thanks to advances in artificial intelligence, “e-discovery” software can analyse documents in a fraction of the time, for a fraction of the cost. The Californian data analytics firm Blackstone Discovery has software that can analyse 1.5 million documents for less than $100,000, less than a fifth of what it would have cost thirty years ago.

The possibilities of data analytics for lawyers go beyond just search engines; even something as basic as the pricing of legal services has been completely changed. Clients and lawyers now have access to huge databases about prices that firms charge across the jurisdiction. The TyMetrix LegalView service continuously aggregates tens of billions of dollars’ worth of legal invoices, allowing law firms to choose the best position for themselves: an accessible low-cost provider or a high-end premium law firm.¹⁰ Another firm, Sky Analytics, offers companies a “Right Rate Advisor” tool, which assesses an external lawyer from many aspects to advise companies whether to accept or reject his fees.¹¹ Over the years, a common complaint levelled at lawyers is the opacity of their fee structures and the resultant uncertainty. With a huge amount of data now available about legal fees, data analysis systems like TyMetrix LegalView and Sky Analytics’ “Right Rate Advisor” can make legal fees more transparent, making legal services more accessible for all.

II. PREDICTIVE ANALYSIS AND ABUSE IN THE CRIMINAL LAW

However, arguably the most important use of data analytics is in the criminal law. Algorithms can now piece together information from a myriad of sources – police reports, arrest statistics, surveillance camera footage, and other information generated by the police – to better understand crime activity in a particular area and, more importantly, where criminals are likely to strike next. Based on this “predictive policing” system, the police can better deploy their resources to areas that are more prone to crime, and can respond faster and more effectively when someone breaks the law. One of the most ambitious predictive policing systems in the world is China’s “Police Cloud” system. Government databases scoop up everything from addresses, to medical history, supermarket membership, and delivery records. This information is linked to each citizen’s unique identification number, and is used by security bureau authorities to look for patterns in an individual’s behaviour. These databases are massive: for instance, police in Jiangsu, China have amassed 780 million data points on its citizens,¹² collecting records of citizen’s incomes, navigation data, and their purchases from major e-commerce companies, among other things.¹³ In Shandong, China, the police can access patient records,¹⁴ names and causes of petitioners and political troublemakers,¹⁵ and social media usernames. With the Police Cloud, even the most intimate parts of a citizen’s life are open to the government.

The potential for abuse is obvious. In 2015, the Office of the Central Committee of the Chinese Communist Party announced their intention to embrace technology like the Police Cloud to achieve “social stability”. China’s Ministry of Public Security designed the Police Cloud system to surveil seven categories of “focus personnel”, including petitioners, those who “undermine stability”, and people “involved with terrorism”.¹⁶ Such vague definitions mean that essentially anyone could be designated a threat and placed under surveillance.

Chinese citizens do not have the right to be notified when placed under surveillance and have no legal avenues for contesting it.¹⁷ At present, China has no privacy or data protection law protecting personal data from misuse. The police are under no obligation to obtain a court order to conduct surveillance, or provide any evidence that the people whose data they are collecting from are associated with or involved in criminal activity. There are essentially no effective privacy protections against government surveillance, giving the Chinese police nearly unchecked power.

This is especially alarming if one remembers that predictive policing algorithms are not, and never will be, perfect. Predictive policing systems can only make predictions based on past data, which may not reflect actual risk patterns. Erroneous data will also result in erroneous predictions. A California woman recently won a civil rights lawsuit¹⁸ against the San Francisco Police Department after a number-plate reader misidentified hers as a stolen car and she was held at gunpoint by officers, forced to her knees, and detained for 20 minutes.

Especially dangerous is the very real possibility of bias in the input data or the man-made algorithms, causing bias in the predictions. The LAPD has seen a “feedback loop” in its PredPol system sparked by skewed input data.¹⁹ A racial bias in the existing crime statistics made the algorithm direct officers to certain neighbourhoods – typically those with many racial minorities – regardless of the true crime rate in that area. Errors and bias in data will inevitably survive in the resulting predictions. Authorities would do well to be cautious in relying too much on predictive policing systems.

That said, predictive policing’s short track record seems promising. Chicago’s 7th District Police reported that shootings in that district dropped 39% from January to July 2017 compared to the same period last year.²⁰ The murder rate also dipped 33% during that period, while the murder rate in the city as a whole rose.²¹ Predictive policing systems have also beaten human analysts in other real-world trials.²² While the many inherent shortfalls of these systems must be acknowledged, and applications of these systems must take these failures into account, predictive policing is clearly a technology with great potential.

III. PRIVACY IS NOT UNASSAILABLE

Apart from criticisms of the data analysis systems, data collection on such a scale also raises many legitimate privacy concerns. If GPS data shows Alice was at a hotel at 5 o’clock on Tuesday, and Bob was at the same hotel at the same time, it can be inferred that they might have been together. Further inferences can be drawn from conversation logs between them, if any. Therein lies the core of big data analysis: to reach conclusions that can be drawn through the correlation of many data points, which could not have been drawn from the data points themselves. If these data-sets are from public sources, does the individual have a right to privacy in the new information revealed through analysis? In United States v Maynard,²³ the District of Columbia Circuit held that although the appellant’s individual journeys on public roads were public information, since the compilation of data on these journeys would not have been reasonably expected, the appellant’s behaviour patterns revealed through analysis of all of these trips together remain private.

How, then, are the inferences drawn from big data to be kept private? Data-sets are usually anonymized before use to protect the privacy of the individuals that the data was collected from. Anonymization is done through deletion of personally identifiable information (“PII”), or obfuscation thereof (for example, by changing a postcode from 1234567 to 123**). Top government agencies and leading technology companies have embraced anonymization to protect privacy rights: the US Department of Defence has recommended anonymization “whenever practicable”,²⁴ and Google has said that its anonymization techniques can make identification “very unlikely”.²⁵ Prominent legal scholars also share this faith in anonymization,²⁶ and claim that anonymization can make data reidentification “impossible”.²⁷

This faith is misguided. Unfortunately, data reidentification is easier than most would think. If all PII is removed from a data-set, there will be nothing left, since every piece of data is potentially useful in identifying an individual. Therefore, for data, complete privacy means zero utility. For a data-set to have any use at all, some PII must be retained. The widespread faith in anonymization is based on the belief that it is possible to remove enough PII to prevent identification and still retain enough to keep the data-set useful. However, very little PII is actually necessary for deanonymization and thus identification. It has been shown that 87.1% of people in the US can be uniquely identified by their combined five-digit ZIP code, birth date, and sex.²⁸ 53% of American citizens are uniquely identified by their city of residence, birth date, and sex.²⁹

Using just three easily obtainable pieces of information, the vast majority of people can be identified using “anonymized” data. Privacy, in the age of big data, is a much more elusive ideal than previously thought. While it would be asking too much for legislators to come up with rules that could prevent any subsequent deanonymization, legislators must at the very least abandon the idea that removing PII is sufficient protection of privacy in today’s security climate. Since this assumption is the foundation to nearly all privacy laws in use today, a paradigm shift is necessary for legislators and industry leaders in this field.

IV. THE CLARION CALL TO REGULATION

The law is often slow to respond to societal change. Legislatures must mire themselves in debate before promulgating laws far overdue by the time they are passed. The courts, while more flexible, are still reactive rather than proactive. While both bodies stagnate, the total amount of information grows, and private companies and states worldwide are responding to this wealth of information with increasing urgency. In particular, legal practice has been affected: the availability of these huge amounts of data and the analysis has changed case analysis, pricing of legal services, and even the generation of evidence. Police departments worldwide now routinely draw on predictions based on huge data-sets collected from surveillance networks and private companies. Proponents of such policing systems posit this helps the authorities respond faster and more effectively to changing crime trends; critics argue that this breaches the citizen’s right to privacy and gives the authorities untrammelled power to a dystopian degree. Underlying these are the individual’s privacy rights and the unfortunate reality that it is harder to protect these rights than previously thought. Whatever the stance taken, we cannot afford to ignore these issues. A single death is a tragedy but a million deaths a statistic; the countless records of crimes and punishments that form the law have many lessons to teach us, but only if we decide to listen.

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[1] Equivalent to 2.5 billion gigabytes, or 2.5 x 1018 bytes.

[2] Ralph Jacobson, “2.5 quintillion bytes of data created every day. How does CPG & Retail manage it?” (24 April 2013), IBM Consumer Products Industry Blog, online: <https://www.ibm.com/blogs/insights-on-business/consumer-products/2-5-quintillion-bytes-of-data-created-every-day-how-does-cpg-retail-manage-it/>.

[3] Ibid.

[4] (No 26 of 2012).

[5] (Cap 50A, 2007 Rev Ed Sing).

[6] From The Oxford English Dictionary, 2nd Ed, sub verbo “big data”.

[7] This is a compound growth rate of 11.7% per annum. See Gil Press, “6 Predictions For The $203 Billion Big Data Analytics Market”, Forbes (20 January 2017), online: <https://www.forbes.com/sites/gilpress/2017/01/20/6-predictions-for-the-203-billion-big-data-analytics-market/#20ece4b72083>

[8] 459 F Supp 832 (CD Cal 1978).

[9] John Markoff, “Armies of Expensive Lawyers, Replaced by Cheaper Software”, The New York Times (4 March 2011), online: <http://www.nytimes.com/2011/03/05/science/05legal.html>.

[10] Joe Dysart, “How lawyers are mining the information mother lode for pricing, practice tips and predictions”,  online: (May 2013) ABA Journal <http://www.abajournal.com/magazine/article/the_dawn_of_big_data/?utm_
source=feedburner&utm_medium=feed&utm_campaign=ABA+Journal+Magazine+Stories>.

[11] Ibid. Sky Analytics has revealed that the Right Rate Advisor refers to, among other factors, the external lawyer’s years of experience, his or her position in the firm, the size of the firm, and the cost of living where the lawyer is based.

[12] What do China’s police collect on citizens in order to predict crime? Everything, online: Quartz <https://qz.com/1133504/to-predict-crime-chinas-tracking-medical-histories-cafe-visits-supermarket-membership-human-rights-watch-warns/>.

[13] Echo Huang, “China: Police ‘Big Data’ Systems Violate Privacy, Target Dissent”, Human Rights Watch (20 November 2017), online: <https://www.hrw.org/news/2017/11/19/china-police-big-data-systems-violate-privacy-target-dissent>.

[14] Including names and illnesses.

[15] Ibid. A tender document from Tianjin boasted that its Police Cloud system could monitor “petitioners who are extremely [persistent]” and “Uyghurs from South Xinjiang”. It could even pinpoint their residences and track their movements on maps.

[16] Ibid.

[17] Ibid.

[18] Green v City and County of San Francisco, 751 F.3d 1039 (2014)

[19] Danielle Ensign et al, “Runaway Feedback Loops in Predictive Policing” (2017) arXiv:1706.09847v2 [cs.CY]

[20] Juliet van Wageren, “Cities Give Predictive Policing a Second Look”, Slate Tech Magazine (12 December 2017), online: <https://statetechmagazine.com/article/2017/12/cities-give-predictive-policing-second-look>.

[21] Ibid.

[22] During a four-month trial in Kent, London, 8.5% of all street crime occurred within and next to the areas the PredPol system designated as high crime areas, predictions from police analysts scored only 5%. An earlier trial in Los Angeles saw the machine score 6% compared with human analysts’ 3%. See “Don’t even think about it”, The Economist (20 July 2013), online: <https://www.economist.com/news/briefing/21582042-it-getting-easier-foresee-wrongdoing-and-spot-likely-wrongdoers-dont-even-think-about-it>.

[23] 615 F.3d 544.

[24] Technology and Privacy Advisory Committee, Safeguarding Privacy in the Fight Against Terrorism (United States of America: Technology and Privacy Advisory Committee, 2004) at 50 (Recommendation 2.2). The document is available at: http://www.cdt.org/security/usapatriot/20040300tapac.pdf.

[25] Chris Soghoian, “Debunking Google's log anonymization propaganda”, CNET (11 September 2008), online: <http://news.cnet.com8301-13 739_3-10038963-46.html>

[26] Ira S. Rubinstein et al, “Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches” (2008) 75 U Chi L Rev 261, at 266 and 268

[27] Barbara J. Evans, “Congress' New Infrastructural Model of Medical Privacy” (2009) 84 Notre Dame L Rev 585, at 619-20

[28] L. Sweeney, “Simple Demographics Often Identify People Uniquely” (2000) Carnegie Mellon University, Data Privacy Working Paper 3.

[29] Ibid.

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Suggestions on the relevance of the Organization's Size to Section 11 of Singapore's Personal Data Protection Act

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

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Suggestions on the relevance of the Organization's Size to Section 11 of Singapore's Personal Data Protection Act

Foo Ee Yeong Daniel

I. INTRODUCTION

Singapore’s Personal Data Protection Act¹ [PDPA] has been in effect since four years ago,² and serves to balance the protection of individuals’ personal data with the ‘need of organisations to collect, use or disclose personal data for purposes that a reasonable person would consider appropriate in the circumstances’.³ Since then, the Personal Data Protection Commission [PDPC], with the help of public consultations,⁴ has continually revisited and augmented⁵ the PDPA’s various advisory guidelines.⁶

The PDPA stipulates various obligations, which organisations should fulfil based on ‘what a reasonable person would consider appropriate in the circumstances’, as per section 11(1) of the Act (the “reasonableness test”). This standard of reasonableness underpins the standard of compliance for all obligations under the PDPA,⁷ and the Advisory Guidelines on Key Concepts in the PDPA⁸ [Guidelines] clarifies that this applies to all private organisations⁹ as defined in section 2, regardless of their size.

This article aims to explore the relevance of an organisation’s size to the PDPA’s reasonableness test, and submits that the former should be considered as a factor in applying the latter. This may be done, for instance, by providing for it in the Guidelines.

II. MINIMAL SCOPE FOR SIZE IN THE PDPA’S REASONABLENESS TEST

Currently, the size of the organisation appears to be contemplated only by the Protection Obligation – when determining whether reasonable security arrangements have been made to prevent unauthorised handling of personal data under section 24 of the PDPA. This is seen from the Guidelines, which provide only general guidance for compliance¹⁰ and mention the size of the organisation only once: as a factor in risk assessment exercises determining whether information security arrangements are adequate.¹¹ Otherwise, the PDPA legislation and jurisprudence do not feature the size of the organisation in applying the reasonableness test for any other obligation. There does not appear to be any debate on this issue; one can only guess that the drafters of the PDPA believed that fulfilling these other obligations was more important than the strain of compliance on organisations and/or that the obligations were generally undemanding for organisations that already had strong data protection practices. In any case, the PDPA prevents organisations from invoking their small size to unjustifiably exempt themselves from obligations to protect personal data.

Instead, the reasonableness of measures appears to turn on the impact on the individual whose personal data is mishandled and the compliance measures themselves. For example, the Accuracy Obligation under section 23 considers, inter alia, the nature of the personal data,¹² as well as the impact on the relevant individual should the data be inaccurate.¹³ Another example is the Notification Obligation under section 20, which considers the ‘circumstances and manner in which [the organisation] will be collecting the personal data’,¹⁴ the ‘frequency at which the personal data will be collected’¹⁵ and ‘the channel through which the notification is provided’.¹⁶ The size of the organisation does not appear to feature in the reasonableness test for any of the obligations under the PDPA, except for in the Protection Obligation.

III. ORGANIZATIONAL SIZE SHOULD BE A FACTOR

As a result of the above, the reasonableness test arguably fails to take into account the resource-scarce reality of many small organisations when determining whether they have discharged their obligations to a ‘reasonable’ standard under the PDPA. One example is where an organisation transfers personal data to its parent company overseas, and has to fulfil its Transfer Limitation Obligation under section 26 of the PDPA. The Guidelines suggest that the organisation reviews the corporate rules binding both organisations and assesses that they comply with these regulations, as well as that the data protection is ‘comparable to the standard under the PDPA’.¹⁷ This envisages studying rules, designing and executing appropriate transfers, as well as deciding whether corporate practices sufficiently comply with legislation – all difficult processes that require a certain amount of manpower or at least expertise that small organisations will not be as privy to as large ones. Except for in the Protection Obligation, the PDPA’s current reasonableness test essentially demands the same standard of compliance from the sole proprietor as that from the large, multinational company. This raises issues of resource inequality and disadvantage to small organisations, for which sustainability is already a challenge without the PDPA.

Considering the organisation’s size when applying the reasonableness test would better accord with the plain meaning of ‘reasonableness’. It appears unreasonable, in the barest and most layman sense of the word, to expect small organisations to comply with the PDPA as rigorously as large organisations. Then-President of the Singapore Chinese Chamber of Commerce and Industry, Mr Teo Siong Seng, emphasised during the Second Reading of the Personal Data Protection Bill that small organisations would struggle more with manpower, time-related and even consultancy costs of compliance with the PDPA.¹⁸ SMEs have since reportedly had to grapple with ‘overburdened staff’¹⁹ and five-figure costs on ‘new procedures, staff training and the upgrading of technology]’.²⁰ In particular, the obligation to ‘develop and implement policies and practices that are necessary’ to comply with the PDPA, as per section 12(a) of the Act, is manifestly more difficult for small organisations than it is for large ones. Taking into account an organisation’s size would achieve better approximations of what a ‘reasonable person would consider appropriate in the circumstances’. This would in turn produce more practical benefits: guiding the PDPC to achieve fairer adjudicative outcomes – ensuring that small organisations are not penalised for failing to take compliance measures beyond their means.

Further, having regard for the size of the organisation would better achieve the PDPA’s purpose of mitigating compliance costs.²¹ Organisations should save costs when implementing essential PDPA-compliant processes, as doing so guards against actionable, personal data breaches ‘under other statutes, at common law and equity’.²² This helps organisations save costs on litigation and compensation, which would be greater than the costs incurred for compliance with the PDPA. However, as the PDPA’s reasonableness test now apparently does not accommodate the inherent differences between small and large organisations, small organisations may find themselves tending toward the safest practices or ‘best solution[s]’ adopted by large organisations, which may be too costly for them.²³ Recognising that the size of the organisation should affect what is considered ‘reasonable’ compliance would give a green light to small organisations and their consultants (if they can afford any) to exercise latitude in adopting more cost-efficient practices that would still comply with the PDPA.²⁴

Considering the organisation’s size would also better achieve the PDPA’s purpose of enhancing Singapore’s business competitiveness.²⁵ Holding small organisations to the same standard of ‘reasonableness’ as large organisations in complying with the PDPA has deleterious effects on the former’s operations.²⁶ This is because compliance with the PDPA requires a large amount of time, cost and effort that could otherwise be invested productively into the organisation’s operations.²⁷ Such resource-demanding measures include studying the PDPA, appointing a Personal Data Officer,²⁸ developing policies and practices for compliance²⁹ that must be then communicated to staff,³⁰ as well as training staff to receive and respond to PDPA-related inquiries and complaints.³¹ This has arguably even worse consequences for small social service organisations, which already struggle to make the most of their resources to perform their charitable works. Imposing the reasonableness test for compliance – without considering their sizes – risks impeding the good work of these organisations and generally inhibiting the progress of Singapore’s social service sector – a result that is normatively undesirable. A reasonableness test that accounts for the organisation’s size would encourage small organisations to consider practices that are less operationally disruptive than those that large organisations adopt but would still comply with the PDPA. Such would not only facilitate the Act’s aim of business productivity and competitiveness, but also the socially desirable aims of various social service organisations.

IV. THE DANGERS OF CONSIDERING ORGANIZATIONAL SIZE

The dangers of considering an organisation’s size in applying the reasonableness test may be observed from the effects of Australia’s Privacy Act 1988³² [APA], which makes exemptions for small businesses.³³ This ‘small business exemption’ has been heavily criticised, and the Australian Law Reform Commission even recommended its repeal in 2008.³⁴ In particular, it has been argued that organisational size is unrelated to the risk of personal data breach; such depends instead on the nature of the data, its handling and the organisation’s operations.³⁵ There have been concerns that the APA may be abused by small organisations, which are given a statutory backdoor to misuse personal data in the name of cost-effectiveness.³⁶

Including the organisation’s size as only a factor in the PDPA’s reasonableness test would be an appropriately moderate approach that mitigates the risk of completely exempting small, rogue organisations. In fact, as suggested, the organisation’s size could be mentioned as a factor only in the Guidelines. Since the Guidelines are ‘advisory’ and ‘do not constitute legal advice’,³⁷ this would mitigate the risk of giving small organisations carte blanche to breach the PDPA – holding small organisations to baseline standards of compliance. The non-conclusive status of a ‘factor’, as well as the non-binding nature of the Guidelines, also collectively preserve the PDPC’s ability to find PDPA breaches regardless of the organisation’s size. The only difference would be that the PDPC should be persuaded to weigh the small size of the organisation as one of many factors in deciding whether there is a breach of the Act.

V. MOVING FORWARD: CHALLENGES IN DEFINING ‘SIZE’

In sum, an organisation’s size should be considered as a factor in the PDPA’s reasonableness test as such better accords with the plain meaning of ‘reasonableness’, as well as better achieves the Act’s purposes of enhancing Singapore’s business competitiveness while managing compliance costs.

Having explored the legal and normative justifications of incorporating the organisation’s size as a factor in the PDPA’s reasonableness test, this article notes that defining ‘size’ has proven and can be expected to be tricky. The Australian Privacy Act’s definition of a ‘small business’ may be used as a case study. It sets out what would and would not qualify for the exemption, and has two significant features: first, it pegs ‘size’ primarily to the organisation’s annual turnover.³⁸ Second, it adopts a binary view of what would be ‘small’ and not. Suggestions have been made to raise the Privacy Act’s turnover threshold, to account for inflation.³⁹ There have also been suggestions to base the definition instead on specific levels of risk ⁴⁰ or simply the number of employees in the organisation.⁴¹ Each of these has attracted its criticisms.

Thus, careful thought should be given as to what definition of ‘size’ would be a suitable factor in the PDPA’s ‘reasonableness’ test, considering the Act’s aim of promoting business competitiveness and data protection while moderating compliance costs. These, as well as other matters related to how the size of the organisation may or should affect its compliance obligations, should also be further considered.

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[1] Personal Data Protection Act (No. 26 of 2012).

[2] According to the Personal Data Protection Commission of Singapore, “Legislation and Guidelines”, online: <https://www.pdpc.gov.sg/legislation-and-guidelines>, ‘[t]he PDPA took effect in phases starting with the provisions relating to the formation of the PDPA on 2 January 2013. Provisions relating to the DNC Registry came into effect on 2 January 2014 and the main data protection rules on 2 July 2014.’

[3] Supra note 1 at s 3.

[4] A useful repository of these consultation papers may be found at the Personal Data Protection Commission of Singapore, “Public Consultations”, online: < https://www.pdpc.gov.sg/legislation-and-guidelines/public-consultations>.

[5] Singapore Parliamentary Debates, Official Report, vol 93 (10 March 2015) (Assoc Prof Dr Yaacob Ibrahim).

[6] Supra note 1 at s 49(1) states that the ‘Commission may, from time to time, issue written advisory guidelines indicating the manner in which the Commission will interpret the provisions of this Act’.

[7] These may be broadly labelled as the Consent Obligation, Purpose Limitation Obligation, Notification Obligation, Access and Correction Obligation, Accuracy Obligation, Protection Obligation, Retention Limitation Obligation, Transfer Limitation Obligation and Openness Obligation. This article will look at only a few of these obligations, mostly for illustrative purposes.

[8] Personal Data Protection Commission of Singapore, “Advisory Guidelines on Key Concepts in the PDPA” (revised 27 July 2017).

[9] Ibid at 6.3.

[10] Personal Data Protection Commission of Singapore, “Introduction to the Guidelines” at para 3.3.

[11] Supra note 8 at 17.4(a).

[12] Ibid at 16.4(a).

[13] Ibid at 16.4(e).

[14] Ibid at 14.10(a).

[15] Ibid at 14.10(c).

[16] Ibid at 14.10(d).

[17] Ibid at 19.4.

[18] Parliamentary Debates Singapore: Official Report, vol 89 (15 October 2012) (Nominated Member, Mr Teo Siong Seng). Mr Teo spoke as then-President of the Singapore Chinese Chamber of Commerce and Industry, ‘representing 4,000 corporate members and 145 trade associations from a great diversity of trades, industries and service providers’.

[19] The Straits Times, “Privacy Act sows confusion”, online: < http://www.todayonline.com/commentary/privacy-act-sows-confusion>.

[20] The Straits Times, “Early childhood educator simplifies personal data protection requirements”, online: <http://www.straitstimes.com/business/companies-markets/early-childhood-educator-simplifies-personal-data-protection-requirements>.

[21] Singapore Parliamentary Debates, Official Report, vol 89 (15 October 2012) (Minister for Communications and Information, Associate Professor Dr Yaacob Ibrahim).

[22] Hannah YeeFen Lim, Data Protection in the Practical Context: Strategies and Techniques (Singapore: Academy Publishing, 2017) at 1.2.

[23] Supra note 19.

[24] It is interesting to note that organisations are already advised to consider their size in deciding appropriate audit processes, as per Alat Sheela, Role Of Audit In Your Organisation’s Personal Data Protection Act 2012 Compliance Programme, Personal Data Protection Digest (Singapore: Academy Publishing, 2017) at 10. It is submitted that this should be the case for all forms of compliance practices.

[25] Supra note 22.

[26] This was recently alluded to in Parliamentary Debates Singapore: Official Report, vol 94 (6 March 2017) (Member of Parliament, Mr Saktiandi Supaat): the need to protect personal data has made it ‘more difficult’ for businesses to ‘use data innovatively and optimize business opportunities’.

[27] Supra note 19.

[28] This is an extension of the PDPA’s obligations; supra note 1 at s 11(3).

[29] Ibid at s 12(a).

[30] Ibid at s 12(c).

[31] Ibid at s 12(b).

[32] Privacy Act 1988 (Cth).

[33] Ibid at s 6C.

[34] See Recommendation 39-1 in Australian Law Reform Commission, “Australian Privacy Law and Practice Report 108” at p 53.

[35] Ibid at 39.26.

[36] A more detailed analysis of the Privacy Act 1988’s ‘small business exemption’ may be found in Supra note 35.

[37] Supra note 10 at 3.1.

[38] Supra note 32 at s 6D.

[39] Supra note 34 at 39.124.

[40] As determined by the type of data and number of individuals about whom data is held; Ibid at 39.126.

[41] Ibid at 39.129.

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

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

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

Benjamin Low

I. INTRODUCTION

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

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

II. BACKGROUND

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

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

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

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

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

III. PROBLEMS WITH THE NF FRAMEWORK

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

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

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

IV. THE NG KEAN MENG TERENCE SENTENCING FRAMEWORK

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

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

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

Step 1. Classification of the Offence

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

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

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

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

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

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

Step 2. Calibrating the Sentence

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

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

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

V. COMMENTARY

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

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

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

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

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

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

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

VI. CONCLUSION

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

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

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[1] [2017] 2 SLR 449.

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

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

[4] Supra note 2 at [20]–[21].

[5] Ibid.

[6] Ibid, at [37].

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

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

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

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

[11] Supra note 1 at [13]–[15].

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

[13] Ibid, at s 132.

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

[15] Supra note 1 at [17].

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

[17] [2005] 3 NZLR 372.

[18] Supra note 1 at [39].

[19] Ibid, at [43].

[20] Ibid, at [44].

[21] Ibid, at [45].

[22] Supra note 1 at [47].

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

[24] Supra note 1 at [61].

[25] Ibid, at [62].

[26] Ibid, at [64]–[65].

[27] Ibid, at [71].

[28] Ibid, at [73].

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

[30] [2017] 2 SLR 1015.

[31]Ibid, at [126]–[132].

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

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

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

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

[36] Ibid, at [74].

[37] Supra note 3 at [20].

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

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

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

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

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

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

I. INTRODUCTION

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

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

II. SELF-DEFENCE AGAINST NON-STATE ACTORS

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

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

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

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

III. SELF-DEFENCE AND TERRITORIAL SOVEREIGNTY

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

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

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

IV. UNRESOLVED QUESTIONS

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

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

V. CONCLUSION

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

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

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

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

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

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

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

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

[7] Supra note 5.      

[8] [1986] ICJ Rep. 14.

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

[10] Supra note 8 at [195].

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

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

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

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

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

[16] [2005] ICJ Rep. 168.

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

[18] Supra note 11 at [139].

[19] Supra note 6 at 30.      

[20] Supra note 5 at 3.

[21] Supra note 2 at 310.

[22] Supra note 5 at 5-6.

[23] Supra notes 4 and 5.

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

[25] Ibid, Article 21.

[26] Supra note 5 at 27.

[27] Supra note 4 at 824.

[28] Ibid.

[29] Supra note 8 at [199].

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

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

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

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

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

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

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

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

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

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

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

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

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

Novritsar Hasintongan Pakpahan*

I. INTRODUCTION

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

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

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

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

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

A. The UNODC translation

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

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

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

B. Irma Devita’s translation

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

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

C. Global Business Guide Indonesia’s translation

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

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

D. General assessment across popular translations

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

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

E. Suggestions for improvement

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

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

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

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

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

III. CONCLUSION

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

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

[1] No. 40 of 2007.

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

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

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

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

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

[7] Ibid, at p. 22.

[8] Ibid.

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

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

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

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

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

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

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

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

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

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

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

[20] Supra note 9.

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

[22] Supra note 3.

[23] Supra note 12.

[24] Supra note 4 at p. 190.

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

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

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

Tan Ming Ren and Liew Jin Xuan

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

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

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

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

Prosecutions are conducted in the name of the public

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

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

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

Offences are prosecuted for the good of the public

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

Maintain a safe and secure environment in Singapore

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

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

Promote a culture where rights are respected

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

Promote strong public institutions

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

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

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

Proceedings are conducted according to values expected by the public

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

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

Action is taken in the eye of the public

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

Sentencing in the Public Interest

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

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

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

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

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

Conclusion

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

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

The SLR's membership in 2017-2018.

Executive Committee members of the SLR for 2017-2018.

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

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

Prosecutorial Discretion: A Critical Evaluation

A PDF version of the article is available here.

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Prosecutorial Discretion: A Critical Evaluation

This article was written in 2008 by Ms. Ng Sook Zhen, who was then Deputy Editor of the SLR. It was featured in Vol. 4, Issue 5 of that year.

William O. Douglas, the longest-serving Justice of the Supreme Court of the United State once mused: “Absolute discretion is a ruthless master. It is more destructive of freedom than of any man’s other inventions.” Indeed, while internal guidelines ensure that prosecutorial discretion is less than absolute in Singapore, the Public Prosecutor (officially the Attorney-general on whose authority the Deputy Public Prosecutors act) is undeniably a very important actor in the local criminal justice system.

As Mr Winston Cheng, Deputy Public Prosecutor of the Attorney-General’s Chambers admitted during a talk held in NUS law school on March 18 this year: “We have the sole discretion in the institution, conduct and discontinuation of criminal procedure.”

This discretion operates on two-folds.

First, public prosecutors decide what to prosecute, looking at each crime committed on a case-by-case basis. The decision on whether to prosecute, as Mr Cheng noted, is “not for the sole purpose of obtaining a conviction”. “If a person is a first offender, is a student and is remorseful, you are not going to put him on a trial.”

The second form of discretion – and often the unwilling result of the sheer volume of cases to be reviewed – is the length of time taken to bring a case to trial. The usual lag time between when an offence is committed and when it is prosecuted in court is estimated to be about one to two years, depending on the complexity of the cases.

But there is no limitation period for criminal offences locally, and public prosecutors may choose to prosecute a case well beyond the time after it was committed. The case of Chan Kum Hong Randy v Public Prosecutor [2008] SGHC 20 (High Court) [Chan], for instance, showed that long lag times are not rare occurrences. In Chan, six to ten years elapsed between the detection of the offences committed and the actual prosecution.

“As a result of the delay in the prosecution, the appellant faces the prospect of having to suffer not once but twice the pain and hardship of incarceration as well as the rigours of reintegration into a society,” said Justice VK Rajah, who headed the appeal. (Chan at [50])

And the worry about discretion does not just stop there. Currently there is little publicly available information about this discretion process, and the lack of transparency is fast growing into a pressing concern. This issue was further highlighted in section 2 of the Workers’ Party Manifesto 2006, which read: “The real power to determine the offender’s sentence shifts from the Courts to the prosecution who will decide which to proceed on to produce the appropriate sentence. This encourages plea-bargaining which makes justice less transparent as the exercise of prosecutorial discretion cannot be reviewed or appealed against.”

Although Associate Professor Ho Peng Kee, Senior Minister of State for Law had announced during the 2007 Budget Debate that more disclosure measures would be introduced, no official response has yet to be implemented. Given unseen guidelines and unarticulated rationales, until more disclosure measures are in place, perhaps the sole comfort in prosecutorial discretion is our faith in the integrity of the people which operate the system.

As the former Attorney-General and now Chief Justice Mr. Chan Sek Keong emphasized in his speech during the 10th Singapore Law Review Lecture, delivered in 1996: “It is people who make a system fair and just, and not the reverse.”

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