Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)

By Agnes Lo, Bryont Chin, Leon Tay & Louis Lai

I. THE CONUNDRUMS OF THE MEDICAL EXPERT WITNESS AND COUNSEL

The Singapore courts are well-accustomed to hearing technically complex disputes, and disputes involving medical issues may present the most complex of these cases. Where judges and counsel are unable to divine the implications of facts and evidence at hand, they inevitably turn to expert witnesses. Expert witnesses assist in interpreting the facts, opining on what these facts mean, and provide specialized knowledge and information so very crucial for a judgment to be made.

Expert witnesses have become necessary ever since complexity in technical matters increased beyond a layman’s untrained capacity. It was understood that when the machines inevitably got involved in disputes, judges had to call on experts to advise them. However, judges do not blindly defer to the authority of the expert. Care is necessarily taken to differentiate between different opinions proffered by each expert, and not every testimony is given equal weight or admitted without any questions. A clear example where the judge departs from the views of an expert is in situations of bias. Another possible difficulty is in finding an objective approach to evaluate competing expert opinions. In such situations, whose opinion is to be preferred and given more weight? Is a professor’s academic opinion more reliable than that of an experienced practitioner lacking in qualifications? These questions continue to plague the courts today.

In a two-part series, this article sets out a preliminary examination of the main factors considered by the court in assessing the proper weight to be given to expert testimony. Medical experts are given foremost consideration as they feature prominently among the expert witnesses appearing before the courts. In a following article, we will also examine inconsistencies and incoherence in the courts’ use of expert evidence, and discuss recommendations for future use of expert evidence.

A. The use of medical experts in court

Medical expert opinions are widely admitted in criminal and civil trials. In criminal cases, these opinions are necessary to determine the psychological or physiological state of the accused persons, from which the judge can establish the legal elements of the offence. When deciding on sentencing, expert opinion also informs the judge of facts from which he can find exacerbating or mitigating factors. In civil matters, liability of the accused and damages to be awarded often depends heavily on the assessment of a medical expert. After all, judges are hardly able to decide what an appropriate sum for medical expenses should be, or how much income would have been lost as a result of an injury. Of course, medical expert opinions are most often adduced in physical injury cases,1 and when trespassing into the realm of medical expertise, judges are loath to substitute their own views for those of the proper experts in the field. In this regard, judges thus place a greater weight on the testimony of a defendant doctor’s own peers.

B. The present litmus tests for the admissibility and reliability of opinions of medical experts

Prior to the introduction of the adversarial criminal system in the 18th century, there was no legal procedure to define experts qua expert witnesses;2 experts would usually be summoned as jurors or witnesses. Evidentiary rules and objections were subsequently developed to standardise the types of evidence and how they can be presented before the court. While the rule against opinion being admissible as evidence emerged alongside the prohibitive rule against hearsay, experts’ opinions are an exception to this otherwise strict rule. This exception was necessary in the adversarial system for experts to provide opinions as witnesses without having observed the facts.

The present legal framework for the admission and giving weight to expert evidence bears two stages of analysis. Judges as finders of fact must contend with the question of whether the expert’s opinion is admissible as evidence, and if so, whether the expert’s opinion is of sufficient weight to be relied upon to establish a fact in issue. The former is governed largely by Section 47 of the Evidence Act and interpretive cases, while the latter is largely a matter expounded upon by case law.

Section 47 of the Evidence Act essentially requires counsel to establish three points to admit expert opinions as evidence:

(a) The pleaded point must be one of “scientific, technical or other specialised knowledge”.3 The ambit of such knowledge and whether a particular field would fall within it seems to be open to discussion, and local courts have yet to pronounce on the specific test. There have been suggestions for reference to tests in foreign jurisprudence, such as the more lenient test in Frye v United States4 (“Frye”); or a more stringent inquiry under Daubert v Merrell Dow Pharmaceuticals.5

(b) The individual giving the opinion must be an expert, who must have obtained the knowledge applied in his opinion “based on training, study or experience”.6 A judicial determination of whether this is made out is discretionary, and often turns on the qualifications, experience, and credibility of the expert in question.7

(c) In the round, the opinion provided must be “likely to assist” the Court in making its determination of fact. This is a lower threshold than that under the same provision before the 2012 Amendments to the Evidence Act.

Once admitted, the court generally gives weight to the expert opinion unless it is later found to be ”obviously lacking in defensibility”.8 In cases where only one expert opinion is adduced or where the experts are in agreement, there are few obstacles that may lead to the courts giving it less weight. This is contrasted to cases where competing expert opinions are adduced in court, where there is interest in how a judge chooses which view to adopt, especially so in the absence of legitimate technical experience. A brief survey of cases involving medical experts affirms a multi-factorial approach to be taken. Some of the factors are examined below.

1. Expert's qualifications and experiences

The most prominent factor is the expert’s qualifications. “Qualifications”, as explained by the Court of Appeal, refers not to an expert’s “professional titles” but instead refers more generally to the expert’s “knowledge and familiarity”.9 While it is generally true that actual experience lends more weight to an expert testimony than mere paper qualifications, the High Court has qualified this by stating in obiter that this was “not an inevitable rule of thumb”.10

The relevance of practical experience to the subject matter of the case is considered down to a micro-level: the court has differentiated between experts with clinical experience in cancer diagnosis and experts with clinical experience in cancer treatment,11 and between experts in the treatment of drug addicts and experts in recognizing signs of drug addiction.12

Other factors that affect the weight given to an expert testimony are his experience doing research relevant to the case at hand,13 and his experience practicing in the Singapore context.14 That a medical expert witness has experience treating one of the parties involved also lends authority to his testimony, since he would be more familiar with that party’s condition(s); however, his familiarity and personal relationship with the party raises clear possibilities of bias that must be dealt with.15

2. Impartiality of expert witness

The testimony of even the most qualified expert will not pass muster if it is tainted by bias. Hired guns fighting for the parties that called (and paid) them can hardly be relied on to provide accurate testimony. The influence of bias is great in practice due to monetary incentives being available, the priming of experts to be a part of the legal team, and the lack of safeguards against errant experts trying to manipulate facts to support a biased opinion.16

Although expert witnesses are appointed by parties themselves, their ultimate duty is always to the court.17 They cannot become mercenaries for hire, bending the facts for the highest bidder. Bias is especially dangerous for expert witnesses because, by definition, expert witnesses have expertise that the judge does not; an errant expert could easily mislead the judge and dictate the outcome. Therefore, judges must remain alive to the dangers of expert bias. Given the high stakes, judges impose only a low threshold for finding bias: even “perceived partiality or inclination” on the expert’s part can suffice to disqualify him for bias.18

3. Alignment with factual evidence

The words of even the most illustrious expert have no weight if it does not comport with the facts. Although disagreement in expert opinions is so common as to be almost inevitable, expert opinions must remain based on the facts established by the court. Expert testimonies that contradict the facts often prove fatal to that side’s case.19 When faced with insufficient evidence or evidence that contradicts the point their side wants to prove, it would be better for the experts to concede “where they ha[ve] to”20 than have the credibility of their entire report doubted by the court.

Factual evidence can also be used as a weapon to knock down opposing experts’ testimonies. In Hii Chii Kok v Ooi Peng Jin London Lucien and another,21 since the plaintiff’s expert could not provide “objective clinical data to support his assertions”, the court strongly preferred the defendant’s experts, whose testimonies “convincingly” countered the plaintiff’s expert’s testimony “point-by-point”.

Finally, expert testimonies should be precise and specific. Sweeping generalisations and conjecture are frowned upon, even more so when they are unsupported by evidence22 or outside the expert’s field of expertise.23

4. Internal consistency of testimony

Inconsistency in an expert’s testimony casts a long shadow over his credibility. The degree of internal consistency has been described as one of the “paramount” considerations that courts will consider when assessing such reports.24 Given that experts are meant to guide the court, admitting the evidence of a muddled and confused expert would be akin to the blind leading the blind. Therefore, courts readily reject inconsistent expert reports or grant them less weight. An example would be in Chua Thong Jiang Andrew v Yue Wai Mun and another25 where the expert’s quality was harshly criticized because of various self-contradictions in his oral testimony plus ambiguities and conflations in his expert report. The court issued a scathing dismissal of his report, describing it as an “illogical and unconvincing” explanation that was “completely off the mark”.

On the other hand, experts who can maintain a high degree of internal consistency in their testimony will enjoy high praise from the courts. In Public Prosecutor v Tengku Jonaris Badlishah bin Tengku Abdul Hamid Thani,26 the court described the prosecution’s expert in the most admiring terms, calling his opinion “consistent, impressive and able to stand up to objectivity”. It should be noted, however, that a dogmatic expert who refuses to change his view even in the face of overwhelming evidence to the contrary is not necessarily preferable to a reasonable expert who concedes in such situations. Experts need not defend their point to the death for fear of sounding inconsistent: courts understand and appreciate an expert changing his view to consider and account for shortcomings in his side’s case. In Khek Ching Ching v SBS Transit Ltd,27 the court noted that under “withering” cross-examination, the plaintiff’s expert had conceded that he was unable to confirm with complete certainty the causation of the plaintiff’s injury. Because he had continued to maintain his position while still conceded where he had to, the court commended him as a “generally good” expert witness that had testified “professionally”, and noted that he had been “of assistance to the court”.

5. Expert's methodology

Although courts are loath to put themselves into the expert’s shoes, an expert report derived using clearly flawed methodology will still be dismissed. It should be noted that an expert’s level of qualification is a separate and distinct factor from the quality of his methodology (although, hopefully, the former would lead to the latter). Ong Pang Siew v Public Prosecutor28 is the main case where this factor has been relevant. In that case, where the accused pleaded the defence of diminished responsibility, the court harshly criticized the prosecution witness for his poor investigative methodology29 when writing his report. The defence witness’ “undoubtedly more comprehensive” methodology meant that his report turned the tide, and led the court to allow the appeal.

6. Expert pushing his/her own case theory

While it is natural for experts to form case theories from prolonged exposure to a case, it is prudent for experts to remain objective in their testimonies and not venture into interpreting facts. Once experts accept the responsibility of testifying, they must resist this temptation and stay impartial to the facts. However, this is easier said than done.

In Eu Lim Hoklai v Public Prosecutor,30 the Court of Appeal explicitly pointed out the Prosecution witness’ “over-enthusiastic allegiance” to her own case theory, and how, in her “absolute certainty” that it was correct, she had overlooked its “inherent improbabilities” and “uncertainty in the evidence”.31 Although V K Rajah JA (as he then was) restrained himself to stating that her “reliability as an expert witness...may rightly be called into question”, the failure of the Prosecution’s “most important” witness in this important regard defeated the Prosecution’s case.32 Advocacy must be left to the lawyers, and the experts should keep within their own field.

C. Conclusion

As explained in the introduction, the exception of the expert witness was necessitated by the increasing complexity of legal disputes. In the years since, as the sight of experts in courtrooms became commonplace, rules in this area appeared and grew. Much of the law on the admissibility and weight of expert evidence was created by judges, since it is for them that the issue is most pressing. Judges rely on experts to guide them through their fields of expertise, to steer them through the pits of ignorance to reach justice, fairness, and truth. Thus, when searching for guides, judges are just like the rest of us: they look for persons with impartiality, experience, clarity, and intellectual honesty. Such paragons of virtue may be hard to find, but there is hardly an alternative. Trade-offs have to be made, and the second part of this series will examine them in greater depth.


[1] This has been established in a number of American studies. See Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think about Experts” (2016) 91 Ind LJ 353, which records that physicians make up the majority of experts at 37.5%; and Champagne et al, “An Empirical Examination of the Use of Expert Witnesses in American Courts” (1991) 31:4 Jurimetrics J 375, which observed that most experts were physicians (48%), and experts were mainly used in physical injury cases, and Samuel R Gross, “Don’t Try: Civil Jury Verdicts in a System Geared to Settlement” (1996) 44 UCLA L Rev 1, which observed that medical experts make up the majority of experts.

[2] Tal Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12:1 Science in Context 7 at 9.

[3] Evidence Act (Cap 97, 2012 Rev Ed Sing, s 47(1).

[4] 293 F 1013 (DC Cir 1923).

[5] 509 US 579 (1993).

[6] Supra note 3 at s 47(2).

[7] Fok Chia Siong v Public Prosecutor [1999] SGCA 5 and Wong Swee Chin v PP [1981] 1 MLJ 212.

[8] Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1; [2001] SGCA 38 at [26].

[9] Muhammad Jefrry v Public Prosecutor [1996] 2 SLR(R) 738; [1996] SGCA 44 [Jefrry] at [107].

[10] Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR(R) 983; [2007] SGHC 54 [Sakthivel Punithavathi] at [75].

[11] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2018] SGHC 35 (“Noor Azlin”) at [63].

[12] Jefrry, supra note 9 at [90]-[91].

[13] Supra note 11 at [23].

[14] Ibid at [63].

[15] Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 76 at [7]; AOD, a minor suing by the litigation representative v AOE [2014] SGHCR 21 at [63].

[16] Jeffery D Pinsler, “Expert’s Duty to be truthful in light of the Rules of Court” (2004) 16 SAcLJ 407.

[17] Rules of Court (Cap 322, R 5, 2014 Rev Ed Sing), O 40A, r 2.

[18] Public Prosecutor v Thangaraju Sarukesi [2007] SGMC 7 at [71].

[19] See generally Sheila Leow Seu Moi v Public Prosecutor [2001] SGDC 376 [Sheila Leow]; Yeo Henry (executor and trustee of the estate of Ng Lay Hua, deceased) v Yeo Charles and others [2016] SGHC 220 at [63]-[67], [89], and [91]; Eu Lim Hoklai v Public Prosecutor [2011] 3 SLR 167; [2011] SGCA 16 [Eu Lim Hoklai] at [58], and Public Prosecutor v Tong Lai Chun [2003] SGMC 7 at [183].

[20] Khek Ching Ching v SBS Transit Ltd [2010] SGDC 220 at [95].

[21] [2016] SGHC 21.

[22] Sheila Leow, supra note 22 at [118]-[119].

[23] Eu Lim Hoklai, supra note 22 at [58].

[24] Sakthivel Punithavathi, supra note 10 at [75].

[25] [2015] SGHC 119.

[26] [1998] SGHC 401.

[27] [2010] SGDC 220.

[28] [2011] 1 SLR 606; [2010] SGCA 37.

[29] Firstly, the witness had failed to interview people who had recently contacted the accused person (thus breaching the diagnostic guidelines in the DSM-IV-TR, a reputed psychiatric manual). Secondly, he had also failed to investigate what the court considered to be relevant considerations, viz. the accused person’s changing jobs three times in the 18 months before committing the crime and his diabetes, which increased the risk of depression. Thirdly, he had interviewed the accused person in Mandarin even though he knew that the latter was more comfortable in Hokkien. The court thus condemned his methodology as an “unsatisfactory” one that “fell short of the requisite standard prescribed under the DSM-IV-TR”, especially since he, being the prosecution witness, would have much more available resources. Because of this, his testimony was held to be “less convincing” than that of the defence witness, who not only interviewed the accused in Hokkien, but also interviewed the accused person’s family members and the persons close to him.

[30] Eu Lim Hoklai, supra note 22.

[31] Eu Lim Hoklai, supra note 22 at [56]-[57].

[32] Eu Lim Hoklai, supra note 22 at [52] and [59].


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

Pillars of Strength: NTUC Foodfare Co-operative v SIA Engineering

By Daniel Ang Wei En*

I. INTRODUCTION

The Singapore Court of Appeal’s recent judgment in NTUC Foodfare Co-operative v SIA Engineering1 [NTUC] shed light on the present Singapore position on the imposition of a duty of care in cases of negligence resulting in economic loss.

In NTUC, a driver had collided an airtug into a pillar supporting the floor which the claimant’s kiosk was situated on.2 It was undisputed that the airtug driver failed to keep a proper lookout, and that the kiosk itself was not materially damaged.3 Following the incident, the Building and Construction Authority closed the premises, and Changi Airport Group cut off the supply of electricity to the claimant’s unit.4 Correspondingly, the claimant claimed for: (i) damage to equipment resulting from disuse; (ii) loss of profits during closure; (iii) costs for rebuilding of the kiosk; and (iv) rental incurred during renovation of the kiosk.5

A key question that arose was whether the driver owed a duty of care to avert the pure economic loss suffered by the plaintiff. In this regard, the Court of Appeal’s judgment dealt with three important issues:

(a) The appropriate stage to consider issues of indeterminate liability;

(b) The test applicable to relational economic loss; and

(c) The assessment of physical proximity.

These will be considered below, in turn.

II. APPROPRIATE STAGE OF THE SPANDECK TEST TO CONSIDER INDETERMINATE LIABILITY

The Court of Appeal held that considerations of indeterminate liability are addressed by, and turn on, the findings on legal proximity within the first stage of the test set out in Spandeck Engineering v Defence Science & Technology Agency6 [Spandeck].7 The Court reasoned that since potential defendants must have had a sufficiently close and proximate relationship with the claimant, a finding of proximity necessarily limits the class of potential plaintiffs.8

The Court held that the proximity requirement addresses the concern of liability to an indeterminate class – here, it ensured that the driver was liable only for the pure economic loss suffered by the determinate class of business operators in the area affected by his airtug’s collision.9 Applying the proximity factor of knowledge, the Court of Appeal held that the driver knew that by driving a “powerful vehicle”,10 he could cause damage to structures in the area. Correspondingly, the kiosk operators who would suffer economic loss due to the damaged structures was limited to “a determinate class of persons”11 [emphasis in original] and confined to operators on the same floor as the driver.

Ostensibly, the concern of indeterminate liability is still a policy factor considered under the second stage of the Spandeck test. In considering the policy factors, the Court reiterated its finding (earlier in the proximity stage) that the proximity requirement limited the driver’s liability to a determinate class of claimants (business operators in the affected premises who suffered pure economic loss).12

III. THE APPLICABLE TEST FOR RELATIONAL ECONOMIC LOSS

The Court of Appeal held that the Spandeck test is the applicable test for imposing a duty of care in respect of relational economic loss. Although the issue of relational economic loss specifically had not been considered by the Singapore Courts before,13 the Court of Appeal arrived at this conclusion because of: (i) the doctrinal coherence accorded by the Spandeck test; and (ii) the lack of normative justifications to transpose foreign tests into the Spandeck test.

On the first reason, the Court of Appeal reaffirmed that the Spandeck test would be the “single test for a duty of care for all claims in negligence, regardless of the nature of the plaintiff’s loss”.14 On the contrary, distinguishing relational economic loss from other kinds of economic loss would be to “introduce an even finer distinction into the duty of care inquiry” than the previously rejected distinction between physical damage and economic loss.15

In respect of the second reason, after reviewing Australian and Canadian authorities, the Court of Appeal concluded that they did not show a compelling normative justification warranting a separate criteria, because: (i) such criteria has been strongly criticized;16 and (ii) its purpose of addressing indeterminate liability can be addressed by Spandeck’s proximity requirement.17 In fact, the Court of Appeal opined that the foreign authorities also contained elements of a “proximity-based analysis”.18

IV. THE ASSESSMENT OF PHYSICAL PROXIMITY

The Court of Appeal held that there was physical proximity between the Driver and the business operator. First, there was physical proximity in terms of the physical-spatial distance between the Driver’s operations and the affected premises.19 More importantly, the Driver’s operations were confined to a very restricted area which included the affected premises.20 The Court contrasted this with the lack of proximity between shopping mall tenants and a driver operating in a much wider public area who collided into a shopping mall.21 Ostensibly, such a driver would be indeterminately liable – possibly to every tenant in every shopping mall in which he passes.

V. CONCLUDING THOUGHTS

Despite insisting on coherence between the duties of care with respect to the various types of pure economic loss, the Court of Appeal’s application of the Spandeck test itself lacked theoretical neatness. By addressing the concern of indeterminate liability in tandem with legal proximity, the Court conflated the two by straddling two conceptually distinct stages.

While the inquiries of legal proximity and indeterminate liability may effectively lead to the same result of limiting the class of plaintiffs, the two are not analogous. Rather, the content of each inquiry is distinct. The former incrementally22 applies “substantive content … capable of being expressed in terms of legal principles” [emphasis added] to the instant factual matrix.23 However, the latter assesses public policy, possibly “involving value judgments which reflect differential weighing and balancing of competing moral claims and broad social welfare goals” [emphasis added].24

These approaches have been applied even in cases where, like NTUC, the same subject-matter was assessed at both stages of the Spandeck test. In Spandeck, the considerations of adhering to the parties’ contractual framework were assessed at both the proximity stage and the policy stage. Unlike NTUC however, in Spandeck, each stage had a different inquiry. At the proximity stage, the Court of Appeal in Spandeck considered it as part of the assumption of responsibility inquiry.25 In contrast, at the policy stage, the Court in Spandeck sought to avoid imposing “a parasitic duty unnecessary for the parties’ protection”.26

Instead, the Court of Appeal in NTUC conducted the same inquiry at both stages, risking the dangers of applying legal requirements at a Spandeck stage inappropriate for the inquiry. The Court of Appeal in Spandeck warned that “it would be better if the courts were to articulate [policy] concerns under the requirement of policy considerations, rather than subsume these concerns within the proximity requirement, which may then lead to an overall distortion of the legal test to determine the existence of a duty of care” [emphasis added].27 Although the Court of Appeal’s conflation in NTUC is readily justifiable on grounds of practicality, it might potentially result in confusing guidance for lower courts in the future.

Moreover, the effect of the Court of Appeal’s assessment of physical proximity in this case is rather concerning. The distinction drawn by the Court through its contrasting examples effectively reduces liability for defendants who operate in a large, undefined and changing area.28 This is counter-intuitive – from a risk-creation perspective, such defendants create larger risks, ostensibly supporting the imposition of a duty of care.

Additionally, at the proximity stage of the Spandeck test, the Court’s consideration of proximities (physical and causal) together with a proximity factor (knowledge) in NTUC follows the trend of the Court of Appeal flexibly applying the three proximities and proximity factors. This is consistent with the Court of Appeal’s expansion of recognised proximity factors in Anwar Patrick Adrian v Ng Chong & Hue LLC29, beyond assumption of responsibility and reliance, by interposing the knowledge factor within relational proximity.30

Moving forward, this decision clearly reinforces the Spandeck test as the defining test for the duty of care inquiry in negligence. Since its inception, the utility of the Spandeck test’s general application and its theoretical neatness have been pillars of strength supporting the test’s application. However, it remains to be seen whether the shifting of the Spandeck stages will, much like in this case, collapse these very pillars of strength that the Spandeck test was founded upon.


* LL.B. (Hons.) Candidate, National University of Singapore. I record a debt of gratitude to Wong Wen Jian (Judicial Associate, State Courts of Singapore) whose invaluable guidance has greatly benefited an earlier draft of this case note and my education in the law of torts. Any errors and infelicities are, necessarily, my own.

[1] [2018] SGCA 41.

[2] Ibid at [11].

[3] Ibid at [11]-[12].

[4] Ibid at [13]-[14].

[5] Ibid at 22.

[6] [2007] SGCA 37; [2007] 4 SLR(R) 100.

[7] Supra note 1, at [42]-[43].

[8] Ibid at [43].

[9] Ibid at [52].

[10] Ibid at [50].

[11] Ibid.

[12] Ibid at [54].

[13] Ibid at [59].

[14] Ibid at [60].

[15] Ibid.

[16] Ibid at [61].

[17] Ibid at [78].

[18] Ibid at [65].

[19] Ibid at [47].

[20] Ibid.

[21] Ibid.

[22] Supra note 6 at [82].

[23] Ibid at [80].

[24] Ibid at [85].

[25] Ibid at [108].

[26] Ibid at [101] and [114].

[27] Ibid at [85].

[28] See supra note 21, for more on the issue.

[29] [2014] SGCA 34; [2014] 3 SLR 761.

[30] Ibid at [148].


The PDF version of this article can be found here

Terrorism and the European Court of Human Rights

By Keith Jieren Thirumaran

I. INTRODUCTION

The Council of Europe currently consists of 47 European Countries.1 In order to join and remain a member of the Council of Europe,2 countries must ratify and adhere to the European Convention on Human Rights [Convention].3 Through the Convention, the European Court of Human Rights (“ECtHR”) is empowered to ensure that the Convention is adhered to4 as well as to develop binding5 case law to progress the interpretation of the Convention. The ECtHR interprets the Convention as a “living instrument”6 which has led to an expansive scope of its provisions. This article will examine the impact of developments in the ECtHR’s case law on governments and public officials in the context of combating terrorism. In particular, this article will examine the restrictions that the ECtHR has placed on parties to the Convention (“Member States”) under Articles 2, 3 and 6 of the Convention. It will be submitted subsequently that although restrictions on governments and public officials are generally necessary, the restrictions of the ECtHR are too far-reaching and unreasonable in the context of protecting the lives of innocent civilians.

II. RIGHTS AFFORDED UNDER THE CONVENTION

All humans have the right to life and this is enshrined in Article 2 of the Convention. Under Article 3 of the Convention, all humans also have the right to be free from torture as well as inhuman or degrading treatment or punishment. Terrorists are defined as people who use violence and intimidation to coerce governments and communities.7 These people commonly engage in unlawful activities that extend to the killing and torture of innocent civilians, thus depriving innocent civilians of these Convention rights.

Article 1 of the Convention provides that Member States must secure these rights and freedoms to everyone within their jurisdiction. This means that Member States must take measures to ensure that no individual is subjected to torture nor to inhuman or degrading treatment, whether committed by a public official or by private individuals such as terrorists.8 Similarly, Members must also take “preventive operational measures” to protect individuals whose lives are at risk from the acts of other individuals, such as terrorists.9

These are positive obligations placed on Member States and public officials to ensure that innocent civilians are not killed or tortured by anyone, including terrorists.10 They require Member States to take reasonable measures to prevent the killing11 or torture12 of anyone in cases where authorities had or ought to have had, at the material time, knowledge of a “real and immediate risk” of loss of life or torture.

However, these positive obligations are in addition to negative obligations placed on Member States not to kill or torture individuals within their jurisdiction, whether innocent civilian or terrorist.13

III. RESTRICTIONS ON NON-JUDICIALLY SANCTIONED STATE ACTIONS

A. Deprivation of Life

Article 2(2) of the Convention provides exceptions where a Member State is permitted to use force that might result in the deprivation of life.14 Under Article 2(2)(a), such force may be used “in the defence of any person from unlawful violence”. Such force must also have been “absolutely necessary” in order to achieve the aim in Article 2(2)(a)15 and must therefore be “strictly proportionate”.16

As Articles 2 and 3 are fundamental and basic values of Member States,17 the ECtHR subjects deprivations of life to careful scrutiny and will therefore consider both the actions of state agents who administer the force as well as surrounding circumstances such as the planning and control of the operation.18

The restriction on public officials using such force only when absolutely necessary is itself an uncontroversial restriction. An example demonstrating this necessity is the case of the innocent civilian who was shot dead by police officers on 22 July 2005 on board the London transport network because the public authorities had wrongly suspected that he was a terrorist.19 Although the civil case was settled by mediation,20 this case illustrates the need to hold public officials accountable for their counter-terrorism operations.

In most cases, the application of the test of “absolute necessity” (and its accompanying strict proportionality test) will be straightforward. The firing of guns directly at demonstrators21 and usage of high-explosive indiscriminate aerial fragmentation bombs in an area populated with innocent civilians are clearly more than absolutely necessary.22 However, in less straightforward cases, the manner of application of the test to the facts might result in a decision that places an unreasonable restriction on public officials, especially when applying strict proportionality.

In McCann v United Kingdom,23 4 soldiers shot dead 3 known terrorists in Gibraltar24 after they made movements that appeared as if they were attempting to detonate a bomb.25 It transpired that the terrorists were not armed and were only on a reconnaissance mission with the intention of eventually planting a bomb there.26 The ECtHR held that by not making sufficient allowances for the possibility that intelligence information could be wrong and by not preventing the terrorists from travelling into Gibraltar, the overall situation led to the killing of the terrorists which was therefore not absolutely necessary, violating Article 2.27 This controversial decision generated a strong political backlash in the UK against the ECtHR.28

It is submitted, in support of the minority judges, that the failure to make allowances for intelligence information being wrong was analysed by the majority judges with the benefit of hindsight.29 Both the majority30 and minority31 judges agreed that the authorities had incomplete information and had no choice but to formulate their operation on the basis of information available at that time. Difficult operational choices had to be made involving unpredictable human conduct.32 It must be recalled that the actions taken by the UK government must be judged based on the information available at the material time,33 a position that is akin to the approach under UK Domestic Criminal Law.34

Judges in the majority had earlier found that since the soldiers honestly believed, based on the information that they had, that shooting the suspects was necessary to prevent serious loss of life. The soldiers thus did not violate Article 2: “to hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others”.35 This stands in stark contrast against the subsequent finding that the UK Government violated Article 2, especially since the latter had also honestly believed, based on the information they had, that shooting those terrorists were absolutely necessary to save the lives of innocent civilians.

The consequences of the intelligence information being correct are devastating and as such no responsible government would have allowed the risk of such a detonation.36 It is therefore submitted that the authorities were correct in proceeding on the worst-case scenario basis.37 Failing to do so would show a “reckless failure of concern for public safety”38 and a breach of the authorities’ duty to protect innocent civilians as well as their own military personnel.39

It is also submitted, in support of the minority judges, that it would not have been practicable for UK authorities to arrest and detain the terrorists at the border.40 The UK Government’s reason for not arresting the terrorists at the border was because there was insufficient evidence to warrant the detention and trial of the suspects.41 However, this was rejected by the majority.42 The result of the majority’s finding places an unreasonable restriction on public authorities because arresting and releasing terrorists at that stage in time would have alerted the terrorists to the readiness of the authorities.43 The risk of a successful renewed attack on innocent civilians would increase as a consequence.44 Furthermore, the UK Government had no option of preventive detention of suspected terrorists as the ECtHR had previously ruled that detention without trial would be a violation of Article 5 of the Convention.45 The incompatibility of preventive detention with the Convention, even in the context of terrorism, has subsequently been reinforced.46

As such, the ECtHR’s imposition of a test of strict proportionality in determining whether the force was “absolutely necessary” effectively leaves the UK government without any options to protect innocent civilians from terrorists. On the facts of McCann v United Kingdom, there would have been nothing the UK government could have done and they would have been forced to risk innocent lives.

By way of contrast, on the opposite end of the spectrum, the USA frequently engages in targeted killings of terrorists via drones and airstrikes, even on targets located in foreign countries.47 This itself is submitted to be too extreme an opposing view.

It is submitted that a middle ground should be adopted where the proportionality test is moderated to be more lenient, in line with general standards relating to private- or self-defence. Under UK Domestic Criminal Law, strict proportionality is not applied for these doctrines of defence because it is unrealistic to expect anyone to weigh the exact amount of force necessary for self-defence in the midst of a situation.48 This position is similar elsewhere because the proportionality of a response should not be weighed on “golden scales” with the “luxury of time and calmness to think about the possible courses of action to take”.49 The detached objectivity that is natural in courtrooms long after the incident has taken place is an inappropriate test for such proportionality.50

B. Torture, inhuman or degrading treatment

(1) Obtaining Information

Torture as well as inhuman or degrading treatment or punishment are widely accepted to be morally wrong and unacceptable behaviour. The issue here is whether there are circumstances where such behaviour can ever be justifiable. Much of this discourse tenders to moral and philosophical quandaries as opposed to legal matters. It is therefore unsurprising that there is no international consensus on this issue. As much academic ink has been spilled on this issue – most of it being non-legal and beyond the scope of this article – the following will only provide a brief overview of the contrasting positions at the risk of oversimplification.

Deontologists favour an absolute moral prohibition because of the essence of human dignity which prevents such actions, regardless of any possible disastrous costs of an absolute prohibition.51 A common illustration is to let a nuclear bomb go off in a city rather than getting the information needed to stop it.52 The Council of Europe and the ECtHR both adopt positions in favour of the deontologist view. The prohibition against torture, and inhuman or degrading treatment or punishment is an absolute prohibition.53 This is irrespective of the conduct of the person,54 and has no exceptions and can have no derogations, “even in the event of a public emergency threatening the life of the nation”.55 Even under difficult circumstances such as fighting organized terrorism and crime, violations of Article 3 are absolutely prohibited.56 Furthermore, a sufficiently real and immediate threat of conduct violating Article 3 may also result in a violation of Article 3.57 In addition, any physical force that has not been made strictly necessary by a suspect’s conduct may result in a violation of Article 3.58 In light of the absolute nature of the Article 3 right, judicial corporal punishment such as caning has also been ruled to violate Article 3, and therefore cannot be applied to any person59 regardless of the crime committed.60

Under this view, one must also consider the possibility of suspects confessing false information to stop being tortured. Furthermore, suspects may not always possess the information as believed and may not even be the correct persons to apprehend.61 Furthermore, opening the door to “some” torture might lead to a slippery slope as it is not possible to limit the boundary on torture, leading to more extensive torture.62 Lastly, torture is more heinous than operational killings because a suspect is particularly vulnerable when held in police custody and deprived of liberty.63 Where the suspect is already entirely under the public authorities’ control, the authorities must bear a duty to protect him or her.64

Consequentialists, on the other hand, acknowledge that there may be some circumstances where torture may be necessary for the greater good.65 An example of the consequentialist view is the USA which engages in conduct that would violate Article 3 of the Convention during some of its interrogations.66

Under this view, a common example is known as the “ticking bomb” scenario where information is needed urgently to diffuse a bomb to save lives and torture is the only method that can obtain the information.67 In such situations, at varying levels, consequentialists agree that torture would be necessary.68 Beyond this common argument, it should be noted that in one case where the interrogation was held in breach of Article 3, the authorities obtained a “considerable quantity of intelligence information, including the identification” of 700 terrorists and solved 85 unexplained crimes.69

(2) Obtaining Convictions

Where subsequent evidence is obtained as a result of information earlier obtained during treatment that violates Article 3 (torture, inhuman or degrading treatment), and if the evidence (resulting in a conviction) is a direct result of the violation, then it is automatically unfair to use the evidence.70 The reason for this is because allowing such evidence to be admitted would be an incentive for public authorities to continue violations.71. This only applies where the evidence had a bearing on a conviction, as opposed to reliance on other untainted evidence.72 This means that the focus of the ECtHR is on the unfairness of the violation in light of the absolute nature of Article 3, as opposed to other factors in other jurisdictions such as reliability,73 probative value74 or voluntariness.75

While hardly any objection is taken to this approach, caution must be taken by the ECtHR to ensure that conduct in alleged violation actually meets the high thresholds of “torture, inhuman or degrading” treatment. The reason for this is because in interrogations, “some discomfort has to be expected”76 and it should be borne in mind that “the police work in difficult circumstances” such that removing “all doubt of influence or fear” would mean that the police “would never be able to achieve anything”.77

IV. RESTIRCTIONS ON JUDICIALLY SANCTIONED STATE ACTIONS

The ECtHR has decided that Member States cannot extradite a criminal to a Non-Member State where there are substantial grounds to believe that there is a real risk of torture, inhuman or degrading treatment or punishment for the criminal.78 In light of the fact that judicial corporal punishment such as caning has been held to be prohibited by Article 3,79 Member States are unable to extradite terrorists to Non-Member States to face caning. The ECtHR subsequently extended this to include the death penalty and execution,80 such that Member States can no longer extradite criminals to Non-Member States to face the death penalty.81 The ECtHR has also expanded this to include extradition to a Non-Member State where a terrorist faces a de facto irreducible life sentence without parole.82 The ECtHR has made clear that these restrictions also prevent expulsions83 and even to the deportation of illegal immigrants that have snuck into the country.84 In one case where extradition was prohibited, the ECtHR has went so far as to say that the “serious threat to the community” does not diminish the risk of a terrorist suffering harm when deported.85

Leaving aside any potential diminution of deterrent effect from death penalties or caning, the implication of the ECtHR’s decisions is that Member States are no longer able to get rid of terrorists that were originally not within their jurisdiction. Furthermore, an extension of this would be that terrorists from Non-Member States might specially flee to seek refuge in Member States since they cannot be deported back to face the death penalty or judicial corporal punishment even if they entered the Member State illegally.

A possible workaround in recent times has been to ensure that the state requesting for extradition agrees not to impose judicial corporal punishment on the suspect.86 This can logically be extended to securing an agreement not to impose the death penalty as well. It remains, however, less than ideal. Apart from questions of sovereign equality or those of imposing of subjective values on other states, any Non-Member State is free to decide that it will not agree to the imposed terms for extradition, thus leaving the Member State potentially stuck with a terrorist. Furthermore, the ECtHR may not even be persuaded by the assurances provided by the state requesting for extradition if it finds that the foreign government is unable to adequately guarantee a freedom from Article 3 treatment.87

V. CONCLUSION

The sum effect of developments in the ECtHR’s case law is that governments and public officials in the Council of Europe are severely hampered from combating terrorism. Member States must fulfil a test of strict proportionality when making decisions relating to deprivations of life and are also unable to detain nor remove terrorists from their countries. These considerable restrictions place the lives of innocent civilians at significant risk and are therefore unreasonable in the context of fighting terrorism.

It is suggested that in analysing state behaviour in respect of terrorism, a useful analogy may be drawn from the opposing goals and values of Criminal Justice Systems. In the Criminal Justice System, a balance is normally struck somewhere along the spectrum between a model that primarily aims to suppress crime88 (the “Crime Control Model”) and a model that primarily seeks to protect an individual’s rights89 (the “Due Process Model”). When it comes to terrorism, many innocent lives are at stake. The severity of the risks involved mean that the appropriate balance required must be shifted towards the values of the Crime Control Model. It is thus submitted that the better way forward is to focus on suppressing terrorism, with the necessary compromise on some of the values of the Due Process Model. As such, primacy must be given to the protection of innocent lives with the necessary evil of watering down some of the rights in the Convention.


[1] Council of Europe, Statute of the Council of Europe, CETS No. 001 (1949) at Article 26 (as at May 2018).

[2] Ibid at Articles 3 and 8.

[3] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950), as amended by Protocols No. 11 and 14.

[4] Ibid at Article 19.

[5] Ibid at Article 46.

[6] Soering v United Kingdom [1989] ECHR 14 at [102].

[7] The Concise Oxford Dictionary of Current English, 9th Ed, sub verbo, “terrorist”.

[8] Z v United Kingdom [2001] ECHR 333 at [73]; A v United Kingdom [1998] ECHR 85 at [22].

[9] Osman v United Kingdom [1998] ECHR 101 at [115].

[10] Ibid.

[11] Ibid at [116]; See also, Edwards v United Kingdom [2002] ECHR 303 at [121].

[12] Z v United Kingdom [2001] ECHR 333 at [73].

[13] Supra note 9 at [115].

[14] McCann v United Kingdom [1995] ECHR 31 at [148].

[15] Ibid.

[16] Ibid at [149].

[17] Ibid at [147].

[18] Ibid at [150].

[19] Armani Da Silva v United Kingdom [2016] ECHR 314, at [12] and [37]–[38].

[20] Ibid at [142].

[21] Simsek v Turkey [2005] ECHR 546 at [108] and [112].

[22] Kerimova v Russia [2011] ECHR 744 at [253] and [257].

[23] Supra note 14.

[24] Ibid at [199].

[25] Ibid at [196] and [197].

[26] Ibid at [219].

[27] Ibid at [213].

[28] Peter Cumper, “When the State Kills – McCann and Others v United Kingdom”, (1995) 4 Nottingham LJ 207.

[29] Joint Dissenting Opinion, McCann v United Kingdom, [1995] ECHR 31 at [8].

[30] Supra note 14 at [193].

[31] Supra note 29 at [8]

[32] Supra note 9 at [116].

[33] Ibid; see also Edwards v United Kingdom, [2002] ECHR 303 at [121].

[34] Criminal Justice and Immigration Act 2008 (UK), c4, s76(3).

[35] Supra note 14 at [200].

[36] Supra note 29 at [9].

[37] Ibid at [13].

[38] Ibid.

[39] Supra note 14 at [192].

[40] Supra note 29 at [11].

[41] Supra note 15 at [204].

[42] Ibid at [205].

[43] Supra note 29 at [11].

[44] Ibid.

[45] Brogan v United Kingdom [1988] ECHR 24.

[46] A and others v Secretary of State for the Home Department [2004] UKHL 56; A and Others v Secretary of State for the Home Department [2009] ECHR 301.

[47] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, (2010) United Nations, A/HRC/14/24/Add.6 at [18]-[22].

[48] Supra note 34 at s76(7)(a); Palmer v R [1971] AC 814 (Privy Council on Appeal from Jamaica).

[49] PP v Vijayakumar s/o Veeriah [2005] SGHC 221 at [52].

[50] Jai Dev v State of Punjab, AIR 1963 SC 612 (India) at 617.

[51] Robert J Homant et. al., ‘Is Torture Ever Justified – College Students’ Attitudes Toward Coercion/Torture’ (2008) 8 JIJIS at p 153.

[52] Ibid at p 153.

[53] Supra note 12 at [73]; Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[54] Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[55] Aksoy v Turkey [1996] ECHR 68 at [62]; Selcuk & Asker v Turkey [1998] ECHR 36 at [75].

[56] Ibid.

[57] Gafgen v Germany [2010] ECHR 759 at [91].

[58] Bouyid v Belgium [2015] ECHR 819 at [100].

[59] Tyrer v United Kingdom [1978] ECHR 2 at [35].

[60] Ibid at [34].

[61] Supra note 51 at p 154.

[62] Ibid.

[63] Ribitsch v Austria [1995] ECHR 55 at [36] and [38]; Bouyid v Belgium [2015] ECHR 819 at [100].

[64] Bouyid v Belgium [2015] ECHR 819 at [103] and [107].

[65] Supra note 51 at p 154.

[66] Department of Defense Joint Task Force 170 on Guantanamo Bay in Cuba, APO AE 09860, Declassified “Legal Brief on Proposed Counter-Resistance Strategies”, JTF170-SJA (31 October 2002).

[67] Supra note 51 at p 153.

[68] Ibid at p 154.

[69] Supra note 54 at [98].

[70] Ibid at [173]; Gocmen v Turkey [2006] ECHR 2003.

[71] Supra note 54 at [178].

[72] Ibid at [178]-[181] and [187].

[73] Poh Kay Keong v PP [1995] 3 SLR(R) 887 (Court of Appeal, Singapore) at [42].

[74] Muhammad bin Kadar v PP [2011] SGCA 32 at [53].

[75] Yeo See How v PP [1996] 2 SLR(R) 277 (Court of Appeal, Singapore) at [40].

[76] Ibid.

[77] Panya Martmontree v PP [1995] 2 SLR(R) 806 (Court of Appeal, Singapore) at [29].

[78] Supra note 6 at [91] and [111].

[79] Supra note 59 at [35].

[80] Al-Saadoon & Mufdhi v United Kingdom [2010] ECHR 282 at [120] and [137].

[81] AL (XW) v Russia [2015] ECHR 964 at [64].

[82] Trabelsi v Belgium [2014] ECHR 893 at [138] and [139].

[83] LM v Russia [2015] ECHR 908 at [126].

[84] Jabari v Turkey [2010] ECHR 369 at [42].

[85] Saadi v Italy [2008] ECHR 179.

[86] John Geddie and Robert Birsel (ed), “Singapore says won’t cane suspected bank robber if deported from UK”, (20 February 2018) Reuters World News, online: <https://www.reuters.com/article/us-singapore-bank-robbery/singapore-says-wont-cane-suspected-bank-robber-if-deported-from-uk-idUSKCN1G40Y9>; “StanChart robbery: Singapore agrees to UK request to not cane suspect if found guilty”, (20 February 2018) Channel News Asia, online: <https://www.channelnewsasia.com/news/singapore/stanchart-robbery-singapore-david-roach-uk-request-extradition-9974270>.

[87] Chahal v The United Kingdom [1996] ECHR 54 at [105].

[88] Herbert L Packer, The Limits of the Criminal (1968) Stanford University Press at p 159.

[89] Ibid at p 239.


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

Joint Call for Papers Law x Technology: Transforming the Face of the Law

Technology disrupts for the better of those prepared. Legal practice is hardly impervious to the implications that technology brings. The advent of blockchain and machine learning technologies is an opportunity, and a potential cost if not pursued. Conversely, the use of technology is equally subject to legal regimes and institutions. Developing a sensitivity to the mutual interaction of the two forces is of utmost urgency as governments and peoples search for a firm footing.

The Singapore Law Review (“SLR”), Asia’s oldest student-run legal publication, and LawTech.Asia, Southeast Asia’s foremost law and technology review, are collaborating on a special issue of the Singapore Law Review journal and LawTech.Asia online publication on the theme “Law x Technology: Transforming the face of the Law”.

Singapore Law Review Journal

We will be accepting articles that are between 5,000 and 11,000 words in length. The topics can cover a wide range from the study of jurisprudence, to cutting-edge empirical research on legal matters, to discussions about recent legal developments, both locally and internationally.

Authors may expect a review of the articles by leading academics in the field of legal technology. Selected submissions will be published in the upcoming Volume 37 of the SLR next year.

Submission deadline: 29 October 2018

For submission guidelines, please visit: http://www.singaporelawreview.com/submissions/

Questions? Email us at journal@singaporelawreview.com

LawTech.Asia online publication

For contributors keen on more concise and insightful articles, we will be accepting submissions below 5,000 words long for online publication. We welcome work which brings a unique perspective to the discourse surrounding law, technology and policy issues, and aim to enrich the community here and globally by re-centering existing discussions around Southeast Asia.

Articles published on LawTech.Asia will also be published on the SLR’s online publication Juris Illuminae.

Submissions can be made any time, and selected articles will be published on a rolling basis.

Guidelines for submission are based on the SLR's Juris Illuminae format, and are available here at: http://www.singaporelawreview.com/submissions-juris/

Questions? Email us at hello@lawtech.asia

About the Singapore Law Review

The SLR is an independent legal publication run exclusively by students of the NUS Faculty of Law. We provide a platform for legal scholarship, with the aim of raising awareness of current legal issues and promoting critical legal thinking, writing, and discussion amongst students, academics and members of the legal fraternity.

About LawTech.Asia

LawTech.Asia is an online publication that brings a unique perspective to the discourse surrounding law, technology and policy issues with a focus on Southeast Asia. The march of technological advancements is unrelenting. Yet, there is a paucity of understanding about how these developments will influence – and are influenced by – underrepresented regions such as Southeast Asia (SEA). Expect the latest on legal innovation, policy reactions or recommendations, thoughts on larger conceptual themes, and feature pieces of individuals on the forefront of these changes.

Patel and Ochroid: Comparison and Attempts at Reconciliation

By Nicholas Chiang

I. INTRODUCTION

With its origins in contract law, Illegality has since been extended by the courts to other areas of law. Attempts to universalise the doctrine have led to considerable difficulty and inconsistency. The House of Lords decision of Patel v Mirza1 [Patel] was a valiant attempt to homogenise the approach to Illegality across all areas of law with a “range of factors” approach – but not without significant resistance, especially from jurists who prefer the deeply entrenched “rule-based” approach.2

Much closer to home, the Court of Appeal in the decision of Ochroid Trading Ltd v Chua Siok Lui3 [Ochroid] lays bare the difficulties in attempting to homogenise the doctrine, hinting that the ideal may indeed be a pipe dream. This article will examine the hurdles faced by the courts in formulating a universal approach in the law by comparing the English and local approach to illegality and discuss their compatibility.

II. ILLEGALITY IN CONTRACT

The majority in Patel laid out a “range of factors” approach which applies to common law illegality. Rejecting a mechanistic approach based on the reliance rule, Lord Toulson held that the courts should consider a) the underlying purpose of the prohibition which has been transgressed, b) any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) the “possibility of overkill unless the law is applied with a sense of proportionality.”4

A more measured ”middle ground” was also adopted by Lord Neuberger, as the Singapore Court of Appeal observed in Ochroid. His Lordship held that there is a “rule” which generally entitles the plaintiff to restitutionary relief,5 and approved of the “range of factors” in determining when exceptions should be made to this “rule”. This departed from the majority’s approach to ascertain the validity of the contract on a discretionary “range of factors”. The distinction between 1) if the contract was void due to illegality and 2) if restitutionary relief should be granted was also made by the court in Ochroid.6 It is thus unclear what Lord Neuberger’s approach is to the former question.

The minority, however, preferred a rule-based approach. Lord Sumption, with whom Lord Clarke agreed, endorsed the reliance test. Under this approach, the validity of a claim turned solely on “whether the person making the claim is obliged to rely in support of it on an illegal act on his part”.7 His Lordship clarified that the reliance rule does not relate to procedural matters. Similarly, the court in Ochroid recognised two conceptions of the reliance rule: the first refers to reliance in the procedural sense, whereas the other refers to the principle in a normative or substantive sense when a claimant seeks enforcement of the illegal contract through the claim.8 The latter conception is good law in Singapore.9 It is noteworthy that the principle is only engaged when a claimant seeks to enforce an illegal contract, but is inapplicable when restitution is being sought.10

The minority dissent was premised on the fact that a “range of factors” approach grants the courts too much discretion, and removes the need for the application of legal rules.11 Furthermore, the majority approach engenders uncertainty due to the incommensurability of various factors and its applicability depends on the nature or degree of the illegality. Lastly, his Lordship pointed out the “range of factors” approach was unnecessary because the reliance rule is able to achieve substantial justice in the majority of cases. Arbitrariness in applying the reliance rule can be mitigated by the availability of restitutionary remedies.

The local approach since Ting Siew May v Boon Lay Choo12 [Ting Siew May] is a discretionary assessment of the proportionality of vitiating a claim in response to a pleaded illegality. It is an approach that balances a range of factors similar to the majority in Patel, albeit with slightly different factors.13 However, while the Patel “range of factors” approach extends to all forms of common law illegality, the discretionary approach in Ting Siew May is to be applied only in the “residuary common law category… of contracts entered into with the object of committing an illegal act”.14

The Patel “range of factors” approach was rejected in Ochroid for three reasons.

Firstly, the approach was unprincipled because it created an arbitrary distinction between common law and statutory illegality by granting unfettered discretion to the courts over illegality at common law.15 If a court is of the view that a contract should not be void pursuant to an established common law category of illegality, the court ought to “reconsider that particular category altogether”.16

Secondly, Phang JA also questioned the necessity of the approach in achieving justice as the availability of restitutionary remedies is sufficient to mitigate the harshness of the traditional rule. The Ting Siew May approach, with its proportionality principle, could also allow the court to reject the defence of illegality to avoid disproportionate and unjust results.17

Lastly, the uncertainty engendered by the “range of factors” approach was left unaddressed by the majority in Patel. These were, namely, that the balancing exercise involves uncertainty through the actual balancing exercise itself, and that the factors are incommensurate with no one factor being determinative. These problems according to Phang JA, were less severe under the approach in Ting Siew May because firstly, it was confined to “contracts entered with the object of committing an illegal act” and secondly, was limited by the “overarching principle of proportionality”.18 However, such uncertainty was unacceptable outside that restricted context.

While the court in Ochroid unequivocally rejected the “range of factors” approach, it is submitted that because of the overlapping similarity of approaches there is a semblance of universality – at least in the realm of “contracts entered into with the object of committing an illegal act”. However, this optimism is arguably short lived , given that parties to a void contract often seek restitutionary relief - wherein a different set of rules and principles apply.

III. ILLEGALITY IN RESTITUTION

With the majority’s “range of factors” approach Patel extending to civil claims of all sorts, the distinction between types of claims becomes irrelevant. The same approach would be applied to restitutionary claims.

While the minority in Patel was more circumspect with respect to contractual illegality, the opposite can be said with respect to restitution. For Lord Clarke, the harshness of the reliance rule in voiding illegal contracts could be ameliorated by the availability of restitutionary relief which, ought to be granted as long as restitutio in integrum can be achieved.19

On the doctrine of locus poenitentiae, Lord Mance construed it as a general principle of rescission that “puts parties back in the position that they should have been in…but for the entry into the contract which was or became affected and unenforceable by reason of the illegality”.20 His lordship also did not restrict the principle by reference to whether the illegal purpose has been carried out. Similarly, Lord Sumption stated that there is a general right to the restitution of money paid under an illegal contract. This position is similar to Lord Neuberger’s endorsement of the “Rule” granting a general right to restitution.

Dicta in Ochroid diverges from both the majority and minority in Patel.21 Phang JA rejected the minority view – more specifically, Lord Sumption’s position that restitutionary relief ought to be extended even to monies paid under a contract to commit murder. The learned Justice of Appeal characterised Lord Sumption’s view as one that would produce offensive or objectionable outcomes that would “bring the court into disrepute and undermine the integrity of the law”. The majority approach was also dismissed with the same reasons vis-a-vis contractual illegality.

In contrast to Lord Clarke’s general principle of rescission which makes available restitutionary relief as long as restitutio in integrum can be achieved, a claim in unjust enrichment in the local context would however be subject to the defence of illegality and considerations of public policy – which is distinct from the defence of illegality in a contractual sense.22 The court in Ochroid further adopted the principle of stultification which prevents restitutionary recovery if doing so would “undermine the fundamental policy that rendered the underlying contract void and unenforceable in the first place [emphasis added]”.23 This position is premised on the inadequacy of the approach which grants a general right to restitution. Even if a restitutionary claim does not provide the plaintiff with a remedy identical to contractual performance under the illegal contract, there are nevertheless remaining dangers of stultification; permitting recovery might provide future plaintiffs with a “lever” that the plaintiff might use to extract contractual performance from the defendant, or it might produce a “safety-net” for parties looking to engage in the same sort of illegality.

On the doctrine of locus poenitentiae, Phang JA gave two reasons for rejecting the Patel minority’s position. The minority had determined that the doctrine should be relaxed as a “general principle of rescission”, such that recovery was permitted as long as restitutio in integrum can be achieved. In response, Phang JA first observed that such a broad and relaxed doctrine could undermine the need for the need for the claimant to establish the requirements for a claim in unjust enrichment. It would, more importantly, allow the claimant to avoid the stultification principle.24

Secondly, Phang JA objected that a broad doctrine is incompatible with the role of the doctrine itself – namely to encourage timely withdrawal from illegality.25 Hence, Phang JA emphasised the need for genuine withdrawal, as opposed to mere voluntary withdrawal. In sum, the court characterised the doctrine as one which should only be invoked based on the policy of discouraging unlawful conduct.

IV. ILLEGALITY IN TORT

While the “range of factors” approach has been extended to cover tortious claims in UK, the law is less settled in Singapore. The courts have traditionally used the close connection test, which according to Ooi Han Sun v Bee Hua Meng26 has a very limited application in tort – confining the test to situations where the injury is directly incurred in the course or commission of crime.27 The High Court in the recent decision of Md Shohel Md Khobir Uddin v Chen Yongbiao and another28 endorsed both the close connection test and the public policy approach of Hounga v Allen29 [Hounga] which can be considered the precursor of the test set out in Patel.

There are four possible paths that local courts may adopt to develop the illegality doctrine in tort law:

(1) Adopting the Patel “range of factors” approach.

(2) Continuing to use the close connection test.

(3) Attempting to reconcile both approaches.

(4) Extending the Ting Siew May approach to tortious claims.

Extending Ting Siew May’s approach (item (4), above) seems unlikely because the Ting Siew May approach is tailored for application to contractual illegality. For instance, one of the factors to be considered is the centrality of the illegality to the contract, which cannot be readily applied to tortious claims. It is suggested that an attempted reconciliation of the “range of factors” and “close connection” tests (item (3), above) will be the most viable way forward because the local courts are unlikely to only apply the Patel approach for the reasons set out above. However, the Patel approach (item (1), above) is potentially incompatible with the close connection test as it gives the courts the discretion to ignore the rule completely.

One plausible solution can be found in a flexible application of the close connection test, where policy considerations can influence the courts to either broaden or narrow the application of the test. In the case of Hounga, the Respondent (who was the employer) attempted to rely on the illegal employment of the Appellant (who was a victim of human trafficking) as a defence. With a flexible application of the close connection test, the Court could have applied the close connection test narrowly and find that the plaintiff did not fall within its scope and was thus entitled to recovery. The impetus behind a narrow application would naturally be overriding policy considerations, such as of discouraging human trafficking and exploitation in Hounga.


[1] [2016] UKSC 42.

[2] See e.g. Lords Sumption’s criticisms of a pliable “range of factors” approach to illegality in Les Laboratoires Servier & Anor v Apotex Inc & Ors (Rev 1) [2014] UKSC 55 at [19]-[21].

[3] [2018] 1 SLR 363; [2018] SGCA 5.

[4] Supra note 1 at [101].

[5] Ibid at [145].

[6] Supra note 2 at [64] – [65].

[7] Supra note 1 at [234].

[8] Supra note 2 at [128].

[9] As accepted in Ting Siew May v Boon Lay Choo and another [2014] 3 SLR 609; [2014] SGCA 28, at [127].

[10] Supra note 2 at [137].

[11] Supra note 1 at [261] – [264].

[12] Supra note 8.

[13] Ibid at [68].

[14] Supra note 2 at [110].

[15] Supra note 2 at [114].

[16] Ibid at [118].

[17] Ibid at [119].

[18] Ibid at [123].

[19] Supra note 1 at [220].

[20] Ibid at [193].

[21] Supra note 2 at [145].

[22] Ibid at [139] and [143].

[23] Ibid at [145].

[24] Ibid at [172].

[25] Ibid at [173].

[26] [1991] 1 SLR(R) 922; [1991] SGHC 73.

[27] Ibid at [15]

[28] [2018] 3 SLR 160; [2017] SGHC 109.

[29] [2014] UKSC 47; see supra note 25 at [33]-[34].


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

The Trojan Horse of Therapeutic Privilege in Hii Chii Kok

By Naomi Koh Jie Min

I. INTRODUCTION

The 2017 Court of Appeal case Hii Chii Kok v Ooi Peng Jin London Lucien1 [Hii Chii Kok] has been heralded as “[t]he end of the ‘doctors know best’ era” by commentators.2 In a landmark decision, a Coram of five Judges unanimously rejected the unapologetically paternalistic Bolam-Bolitho3 test for negligent advice in favour of a three-stage test based on the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board4 [Montgomery]. As the Court put it, a “seismic shift in medical ethics, and in societal attitudes towards the practice of medicine” necessitated an approach that balances beneficence with patient autonomy.5 Hii Chii Kok is indisputably a welcome addition to local case law on medical negligence, but it should not be welcomed uncritically. A key issue with Hii Chii Kok lies in the unclear scope of the defence of therapeutic privilege6 to a claim of negligent advice. In fairness to the Court of Appeal, the doctrine of therapeutic privilege, as Mulheron observes, “has suffered from an almost complete lack of judicial delineation in English law”7 and by extension, Singapore law. However, the cost of leaving therapeutic privilege undefined is high; it leaves the Hii Chii Kok test open to abuse.

II. THE POSITION BEFORE HII CHII KOK

A. Singapore: Gunapathy

To understand Hii Chii Kok, one must consider the state of the law that preceded it. Locally, Khoo James v Gunapathy d/o Muniandy8 [Gunapathy] stood for the position that a two-stage inquiry was required to determine whether a professional had breached his duty of care: namely, whether the expert (1) directed his/her mind to the comparative risks and benefits, and (2) reached a “defensible conclusion”9 after balancing risks and benefits. In other words, the Court of Appeal had adopted the Bolam test of the ordinary skilled man exercising and professing to have a skill,10 with the Bolitho addendum that the conclusion reached must have a logical basis.11 Further, and more pertinently, the Court accepted that the Bolam-Bolitho test applied to pre-treatment advice, following the House of Lords in Sidaway v Bethlem Royal Hospital12 [Sidaway].

B. UK: Sidaway Overuled in Montgomery

Montgomery amended the standard for risk disclosure to one where the doctor is:

“[U]nder a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”13

In this decision, the House of Lords effectively overruled the test in Sidaway. Although, as Hobson observes, their Lordships tried to “frame Montgomery as a development of Sidaway ... to show that the development from Sidaway to Montgomery is smooth”,14 in principle Montgomery effectively displaces the concerns and policies that undergirded Sidaway’s stance that Bolam-Bolitho applied to medical advice.

III. HII CHII KOK IN BRIEF

In Hii Chii Kok, the Court acknowledged the increasing recognition of patient autonomy across common law jurisdictions.15 More specifically, the scope of patient autonomy is greater in relation to medical advice, which guides patients to make an active choice.16 Hence, the Bolam-Bolitho test was no longer applicable in relation to advice. Rather, the Court endorsed a three-stage test (referred to as the “Hii Chii Kok test”).

In the first stage of the Hii Chii Kok test, the Court answers the question of what information the doctor has a duty to disclose. This comprises of what a reasonable person in the patient’s position would wish to know, as well as information that the doctor knows or ought to have known would be important to the particular patient in question.17 The first stage therefore effectively echoes Montgomery.

At the second stage, the Court evaluates whether the doctor was in possession of the pertinent information. If answered in the negative, the Court then has to assess whether the doctor’s ignorance arose from negligence in diagnosis and treatment. This inquiry would fall under the ambit of the Bolam-Bolitho18 test.

If the second stage is answered in the affirmative, then the final question is whether the doctor’s withholding of information was justified. The Court declined to limit the scope of potential justifications, but identified emergencies, waivers, and therapeutic privilege as specific instances in which a doctor may withhold information from a patient.19 It is the exception for therapeutic privilege that is contentious as further explored below.

IV. BOUNDARIES OF THE THERAPEUTIC PRIVILEGE EXCEPTION

A. The Exception

Although Hii Chii Kok purports to eschew the Bolam-Bolitho test in favour of a more expansive paradigm with greater room for patient autonomy, questions have been raised as to the efficacy of the revised test in promulgating these goals. While the Hii Chii Kok test is a step forward with a more patient-focused approach, the wide yet murky scope of the therapeutic privilege exception creates a very real concern. If not properly defined, this exception leaves an opening for medical paternalism to reassert itself. As discussed below, doctors could infringe on a patient’s right to make an informed decision under the guise of the patient’s supposed inability to do so.

What do we know about the therapeutic privilege exception? The Court of Appeal has suggested that it applies exclusively in “exceptional circumstances”,20 but has been vague on the precise details of the test. Ostensibly, it is an objective factual inquiry21 as to whether the patient is likely to be harmed disproportionally to the impact of being provided with the information in question. Showing advertence to the reality that the therapeutic privilege exception is prone to abuse, the Court explicitly stated that the exception should not preclude patients from making a choice merely because the patient’s decision appears contrary to their interests.22 However, and albeit discrepantly, patients who may choose not to undergo “relatively safe treatments that [could] drastically improve their quality of life” may be caught under the exception.23 Moreover, patients who possess mental capacity but also have impaired decision-making abilities are caught under this exception.24

The Court’s attempt to delineate the boundaries of therapeutic privilege is unsatisfying. For one, must the “serious physical or mental harm”25 be medically recognised? Further, would “physical or mental harm” capture scenarios where the anticipated harm arises from the patient’s anticipated refusal to undergo treatment? Given the Court of Appeal’s observation that therapeutic privilege would include “certain geriatric patients who … may be ‘easily frightened out of having even relatively safe treatments that can drastically improve their quality of life’”,26 this appears to be the case. However, this statement is problematic, especially in light of the potentially conflicting Mental Capacity Act27 [MCA] as discussed below.

The confusion that the therapeutic privilege exception generates is exacerbated by the reality that the three stages of diagnosis, advice, and treatment are not mutually exclusive. As the Court itself in Hii Chii Kok noted, “a single step in the medical care process will engage more than one aspect of the doctor’s duty, and the different aspects will then be in play concurrently”28. This permeability between stages is an issue given that it affects the test to be applied and consequently whether the therapeutic privilege exception would even come in play.

This problem was made apparent in Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd29 [Noor Azlin]. In that case, one of the issues in dispute was whether the alleged negligence fell under the scope of diagnosis and treatment, or advice. The plaintiff argued that the defendants failed to advise her of the risk of cancer, such that she was unaware that other diagnostic options existed and did not make any further investigations. Nonetheless, the High Court found for the defendant. The lack of such advice stemmed from the defendants’ professional diagnosis that cancer was not a likely cause of the plaintiff’s complaints. Hence, the proper test to be applied was the Bolam-Bolitho test. Although the decision in Noor Azlin is not in itself controversial, the lack of a clear directive on how the stages are to be distinguished is troubling.

B. Therapeutic Privilege and the Mental Capacity Act

The MCA was enacted to regulate the decision-making process on behalf of those who lack capacity and hence are unable to make decisions for themselves. At first blush, the Hii Chii Kok test has no ostensible relation to the MCA; the former addresses the question of whether the patient’s consent was informed, while the latter deals with treatment in a situation where the patient is incapable of consenting.

However, it is unclear whether a doctor may evade liability for non-disclosure under the MCA in specific situations. More specifically, in light of the undefined boundaries of the therapeutic privilege exception, the implications of the MCA on the Hii Chii Kok test should be explored given that both fundamentally affect whether the principle of patient autonomy can be overridden by the patient’s lack of decision-making capacity. Under the Hii Chii Kok test, therapeutic privilege is explicitly raised as a defence to a charge of negligent advice where “beneficence comes to the fore”,30 echoing the MCA requirement that the decision be made in the “best interests”31 of the incapacitated individual.

Under s 7(2) of the MCA,32 a defendant doctor would not incur liability for an act done in connection with the care and treatment of the plaintiff, assuming that his or her act would not have attracted liability if the plaintiff hypothetically could and did consent. The defendant medical professional must take reasonable steps to establish whether the plaintiff lacks capacity. In addition, he or she must have reasonably believed that the plaintiff lacks capacity, and that it is in the plaintiff’s best interests that the act be done.33 It is conceivable that the “act” in this situation would extend to non-disclosure on the basis of therapeutic privilege. Which acts, therefore, would fall under the ambit of the MCA, and which would fall under the ambit of the Hii Chii Kok test?

The distinction between the two appears to be one of degree. For the therapeutic privilege exception, the Court suggested that it “should extend to cases where although patients have mental capacity, their decision-making capabilities are impaired to an appreciable degree34 [emphasis added]. In contrast, the MCA arguably requires total incomprehension35 or total inability36 to use or weigh information in the process of decision-making. Ultimately, however, the outcome regardless of which is applied is the same: both act to relieve the defendant of tortious liability.

Crucially, however, the MCA explicitly provides that a person is not to be treated as unable to make a decision merely because said decision is unwise.37 This point has been made earlier by Low, who argues that an “informed decision is not synonymous with [a] good decision”.38 This stands in stark contrast to the principle of patient autonomy apparently espoused by Hii Chii Kok – namely, that a doctor may justify omissions on the basis that he or she believed that the patient would be “frightened out of having even relatively safe treatments that can drastically improve their quality of life”.39

Clearly, a successful finding that the patient was fully incapacitated under the MCA is significantly more onerous than the finding that the patient was of a class to trigger the therapeutic privilege exception under Hii Chii Kok. Consequently, it should stand to reason that the corresponding boundaries of the test in Hii Chii Kok should be narrower. Since both exculpate a doctor facing a charge of negligence, it would be logically inconsistent to allow a doctor to prove less under the Hii Chii Kok test.

V. CONCLUSION

Ultimately, the therapeutic privilege exception as it stands is problematic because it is unclear. While it is meant to relate to “exceptional”40 situations, Hii Chii Kok does not provide a workable litmus test for when a situation would fall within its boundaries. Rather, Hii Chii Kok appears to take an expansive view of therapeutic privilege – perhaps more so than other jurisdictions. Pertinently, the House of Lords in Montgomery expressly rejected41 the defendant doctor’s argument in that case that it was “not in the maternal interests for women to have caesarean sections”42.

Granted, it is within the bounds of plausibility that a patient could be clearly and utterly incapable of making the required decision, but not trigger the provisions of the MCA. There reasonably is a space for the therapeutic privilege exception – but the current boundaries of the test are too wide. With respect, further clarification is essential.

In fairness to the Singapore Court of Appeal, the problems surrounding the doctrine of therapeutic privilege apply across jurisdictions. As Mulheron establishes, “the reality is that there is one clear instance of therapeutic privilege in English law”, and this rarity of application hampers the creation of a coherent, articulate doctrine.43

However, this rarity does not justify the continuing confusion surrounding therapeutic privilege. Locally, about 10% of the population suffers from anxiety and depressive disorders.44 This segment – along with the overly anxious, the hesitant to undergo medical procedures, and perhaps even the simply cautious – risk being caught unnecessarily by too expansive a doctrine. Ultimately, for Hii Chii Kok to truly represent a shift in medical ethics towards upholding the principle of patient autonomy, the therapeutic privilege doctrine must be re-considered.


[1] [2017] SGCA 38; [2017] 2 SLR 492.

[2] Hairul Hakkim and Kevin Ho Hin Tat, “The end of the ‘doctors know best’ era – from medical paternalism to patient autonomy”, Singapore Law Blog, (16 July 2017) online: <http://www.singaporelawblog.sg/blog/article/191> accessed 10 June 2018.

[3] Supra note 1.

[4] [2015] UKSC 11; [2015] AC 1430.

[5] Ibid at [120].

[6] Also termed “doctor’s privilege” or “therapeutic exception” in some cases.

[7] Rachael Mulheron, “Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis” (2017) 70:1 Current Leg Probs at 149.

[8] [2002] SGCA 25; [2002] 1 SLR(R) 1024.

[9] Defensible is not to be equated with reasonable. See Gunapathy, ibid at [65].

[10] Specifically, “[a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” [emphasis added]: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587.

[11] Yeo Peng Hock Henry v Pai Lily [2001] SGCA 72; [2001] 3 SLR(R) 555 at [16], as affirmed in Gunapathy at [52], [61].

[12] [1985] AC 871 (HL).

[13] Supra note 4 at [87].

[14] Clark Hobson, “No (,) More Bolam Please: *Montgomery v Lanarkshire Health Board*” (2016) 79(3) MLR 468.

[15] Supra note 1 at [116].

[16] Ibid at [93].

[17] Ibid at [137], [138].

[18] Ibid at [133], [147].

[19] Ibid at [134], [149] and [151].

[20] Supra note 1 at [153].

[21] Ibid.

[22] Ibid.

[23] Ibid at [152].

[24] Ibid at [153].

[25] Ibid at [152].

[26] Ibid.

[27] Cap 177A, 2010 Rev Ed Sing.

[28] Supra note 1 at [90].

[29] [2018] SGHC 35.

[30] Supra note 1 at [149].

[31] Supra note 28, s 6(10).

[32] Ibid, s 7(2).

[33] Ibid, s 7(1).

[34] Supra note 1 at [152].

[35] Supra note 28, s 5(1)(a).

[36] Ibid, s 5(1)(c).

[37] Ibid, s 3(4).

[38] Kee Yang Low, “Doctor’s duty of disclosure and the Singapore Court of Appeal decision in Hii Chii Kok: Montgomery transformed” [2017] 25:2 Tort L Rev 79 at 89.

[39] Supra note 1 at [152].

[40] Ibid at [153].

[41] Supra note 4 at [91].

[42] Ibid at [13].

[43] Supra note 7, at 186.

[44] Jaclyn Lim, “Anxiety in Singapore: Stats, Types and Who’s at Risk”, HealthXchange.sg (blog), online: <https://www.healthxchange.sg/wellness/mental-health/anxiety-singapore-stats-types-risk> accessed 12 July 2018.

Enforcement of Arbitral Awards Set Aside at the Seat of Arbitration: The Way Forward for Art. V(1)(e) in Singapore

By Daniel Ang Wei En*

I. INTRODUCTION

A. Singapore's Pro-Enforcement Policy

The Singaporean courts interpret the statutory grounds for setting aside awards narrowly1 and with strict scrutiny.2 This approach is consistent and seeks to protect the sanctity of the arbitral award.3 In TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd,4 Chan Seng Onn J summed up the Singapore position that “the power … to set aside awards, must and should only be exercised charily”. Singapore’s approach represents the mainstream curial philosophy across the globe.5

B. Extent of Singapore’s Pro-Enforcement Judicial Attitude

For the Singapore courts, dealing with a seat court’s setting aside of the award raises the question of whether to focus on: (a) the award itself; as opposed to (b) the process and effects of the seat court’s decision to set aside.

French courts have demonstrated a clear deference to the arbitral award, which is perceived as self-sufficient, constrained only by French law.6 On the other hand, the US courts have refused enforcement based on why the award was set aside.7

Given Singapore’s standing as a global-leading arbitration centre, the approach that the Singapore courts take is crucial in contributing to the international jurisprudence on this matter, for which there is no clear litmus. Singapore’s position could possibly nudge the divided international community towards a more uniform enforcement of arbitral awards.

II. THE APPLICABLE LAW

The relevant provision is Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)8 [New York Convention], which formed Article 36(1)(a)(v) of the UNICTRAL Model Law on International Commercial Arbitration9 [Model Law]. The latter was incorporated in Singapore’s legislation through Section 31(2)(f) of the International Arbitration Act10 [IAA]. Therefore, these provisions should be interpreted harmoniously.

III. APPLICATION OF THE LAW IN SINGAPORE

A. Grounds for Refusal in the International Arbitration Act

The IAA sets out three (3) grounds for refusal within Section 31(2)(f), where the award:

(a) has not yet become binding;

(b) has been suspended; or

(c) has been set aside.

At present, Section 31(2)(f) has not been pleaded as a ground for non-enforcement.11

B. Grounds for Refusal in Case Law

The Singapore Court of Appeal expressed “tentative thoughts” on this issue in PT First Media TBK v Astro Nusantara International BV 12 [PT First Media], which are obiter.13

(1) Rejection of the french authorities

Reviewing the French authorities of Hilmarton Ltd v Omnium de traitement et de valorisation14 [Hilmarton] and The Arab Republic of Egypt v Chromalloy Aeroservices, Inc 15 [Chromalloy], the Court of Appeal rejected the wider notion of “double control” as adopted by the French courts which17:(a) recognised that awards do not derive their validity from a particular local system of law, and (b) applied French legislation18 which did not contain the equivalent of Article V(1)(e) of the New York Convention.

(2) Implication and purpose of enforcement

In principle, the Court of Appeal in PT First Media “seriously doubted”19 enforcing an award set aside at the seat of arbitration on three grounds:(a) since the award derives legal effect from the law of the arbitral seat, its annulment means there is no award to enforce to begin with (the “legal order ground”), (b) Singapore’s domestic law does not confer “more favourable right[s]”20 of enforcement than Section 31(2)(f) of the IAA, (c) a purposive interpretation of the Article V(1)(e) of the New York Convention requires that the provision must have legal effect outside of the seat court (the “purposive interpretation ground”).

In addition to rejecting the French approach, the Court of Appeal appears to have adopted the US approach itself by considering enforcement based on the effects of the setting aside decision. Ground (b) is non-contentious. Grounds (a) and (c) will be explored below.

IV. THE PURPOSIVE INTERPRETATION GROUND FOR REFUSING ENFORCEMENT

A. Purposive Interpretation of Article V(1)(e) of the Convention

Ascertaining the provision’s purpose is crucial, given the Article 31(1) of the Vienna Convention21 requirement of purposive interpretation.

The New York Convention sought in general to make the enforcement of arbitral awards easier22 and internationally uniform23, as mentioned by the English High Court in Dowans Holding S.A. v Tanzania Electric Supply Co. Ltd.24 [Dowans Holdings]. The particular purpose of Article V(1)(e) was to make enforcement less burdensome by removing the requirement of “double exequatur”.25 As explained by the Chairman of the Working Party, “it would be unrealistic to delay the enforcement of an award until all the time limits provided … had expired or all possible means of recourse … have been exhausted and the award had become “final”.”26

Hence, while the prior Geneva Convention27 required an award to be “final”, a deliberate choice was made to use the word “binding” in Article V(1)(e) instead. The drafters’ particular intent to eliminate “double exequatur” behind Art V(1)(e) has received judicial acceptance, not only in the English High Court's decision in Dowans Holdings28, but also by the Swiss Federal Tribunal in Y v X.29 It follows that enforcement cannot be automatically defeated merely because the seat court refuses to enforce the award.

B. Purpose of Article V(1)(e) in Relation to the Discretion of the Enforcement Court

Sundaresh Menon CJ opined in PT First Media30 that “[i]f [setting aside the award] would only ever be of efficacy in relation to enforcement proceedings in the seat court, then it seems to have been devised for little, if any, discernible purpose [emphasis added].” What then, is the implication of the setting aside of an award?

(1) Basis for the enforcement court’s discretion to enforce the award

Menon CJ’s opinion appears to proceed on the assumption that in the enforcement court, the award must be enforced even if the Article V(1)(e) ground is present, rendering the setting aside ineffectual outside the seat court. However, Article V(1)(e) uses the word “may” and thus confers discretion to enforce. The setting aside by the seat court does not automatically defeat the enforcement of the award elsewhere.

This poses a tension with the fact that the seat court’s setting-aside cannot be strictly ignored. The drafters of Article V(1)(e) did not intend for the setting-aside by the seat court to be completely immaterial to the enforcement court. This tension was explored by the Convention delegates:

“[Article V(1)(e)] reflects the inability of the Conference to agree on the solution to the problem of the “double exequatur”. No one wanted the Convention to require judicial proceedings in confirmation of the award in both the rendering and enforcing State. At the same time, an award which had been set aside … should hardly be granted enforcement in another State.” 31

It is therefore unlikely that Article V(1)(e) was intended to be ignored in favour of compulsory enforcement by the enforcement courts. While the delegates proposed limiting the seat courts' control,32 these limits were unspecified.33

(2) Exercising the discretion accorded to enforcement courts

Taking the US approach of scrutinizing the basis for the seat court’s setting aside, how much discretion does the enforcement court have resulting from its “tug-of-war” with the seat court, and how should it be applied?

(a) Awards set aside on local standards of annulment.

The delegates considered eliminating local standards for annulment, while retaining international standards for annulment such as the New York Convention’s grounds. That was intended to concentrate power in the hands of the enforcement courts, imposing a more uniform regime for the annulment of awards.34

Proponents of the “territorialist” approach have argued conversely that since the drafters wanted the seat court to conduct the principal review of the award,35 the enforcement court should defer to the seat court’s judgment instead. However, adopting this “territorialist” approach undermines arbitration as an effective international dispute resolution mechanism. It would require giving international legitimacy to local standards by importing them into the Convention, notwithstanding that local standards for setting aside awards may be inconsistent with the internationally-accepted standards36 – the sole standards the Convention purports to enforce. Consequently, recognising local standards would then result in internationally inconsistent application, as well as inconsistency in the law of the Convention itself. With respect, it is clear that asserting a “territorialist” position would be inconsistent with the Convention’s purpose of effecting greater uniformity of enforcement internationally.37

Additionally, local standards themselves could be perceived as improper or objectionable by the international community. Jan Paulsson illustrates this with a hypothetical example where an award is annulled because it violates a local rule that all members of the tribunal be men or of a particular religious confession.38

Therefore, enforcement courts should not refuse enforcement only because the award has been annulled according to local standards.39 Respecting the sovereignty of the seat should entitle the seat court to adopt local rules regarding the set-aside of awards to comply with local preferences, without necessarily having international effect.40

(b) Awards set aside on international standards of annulment

Conversely, courts have conversely refused to enforce awards because they were annulled according to international standards.

In the United States, the Federal District Court for the District of Columbia enforced the award in Re Chromalloy Aeroservices Inc. v The Arab Republic of Egypt41 [Chromalloy (US)] because the annulment grounds were domestic in that the award was “not properly grounded under Egyptian law”.42 However, the US Court of Appeals for the Second Circuit refused enforcement in Baker Marine (Nig.) Limited v. Chevron (Nig.) Limited, Chevron Corp., Inc and others v. Danos and Curole Marine Contractors, Inc.43 [Baker Marine] because the award was annulled on the international grounds in Article V(1)(c) and (d).44

The court in Baker Marine stated that enforcement according to domestic law “would seriously undermine finality and regularly produce conflicting judgments.”45 It is submitted that this should also apply to seat courts’ refusing enforcement according to their own domestic law.

For reasons of practicality, a compromise should be made between enforcing awards annulled on local grounds and refusing enforcement if the award was annulled on international grounds.

V. THE LEGAL ORDER GROUND FOR REFUSING ENFORCEMENT

Menon CJ opined in PT First Media46 that “the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce”.

A. The Territorial Approach

This is the starting point of the “territorial” approach.47 Van den Berg argues that “[t]he fact that the award has been annulled implies that the award was legally rooted in the arbitration law of the country of origin.”48 Professor Pieter Sanders, a key drafter, appears to have agreed with the result.49

B. Issues with the Territorial Approach

(1) Problems with the territorial approach in general

The first objection is that the territorial approach is in direct opposition to the text of Article V(1)(e) of the Convention, which confers discretionary power to enforce the award.50

In addition, the territorial approach is grounded on an outdated assumption that the law of the seat court provides the award’s legal force.51 In 1958, when the Convention was drafted, the role of the arbitral seat was arguably more substantial that it is today.52 The seat of arbitration is agreed upon by parties mainly out of convenience or compromise, instead of the inherent importance of the arbitral seat itself.

Further, the parties’ agreement did not include submitting to the exclusive jurisdiction of a particular court. By agreeing to extra-curial arbitration, they arguably intended to avoid the reach of the seat court in the first place.53 The territorial approach contradicts the parties’ intentions as it allows seat courts to interfere with the legal effect of the award. It is doubtful if seat courts should arrogate to themselves powers to do this, and the territorial approach may assume too great a significance on the part of the seat court here.

(2) The Article VII(1) exception

The enforcement courts are empowered relative to the seat courts by Article VII(1) of the Convention, which allows for ‘opting' out of the Convention and into the relatively more pro-enforcement domestic law provisions of the enforcement court. Since Article VII(1) empowers the enforcement court to determine, unilaterally, whether the award would be enforced, the assumption that the award truly derives its legal effect solely from the legal order of the seat court is invalid.

In Hilmarton,54 the Paris Cour d’appel held that Article VII(1) prevailed over Article V, and thus applied55 Article 1502 of the New Code of Civil Procedure to enforce the award.

While Article VII(1) might be interpreted in an uncertain manner,56 it is undergirded by the interests of sovereignty which must prevail as a recognised pillar of the New York Convention. Uncertainty is thus a necessary but surmountable procedural cost. For example, the enforcement court is not bound by foreign judgments if they are not contrary to domestic public policy.57 More importantly, sovereignty is an inalienable principle of international law, while consistency is merely a desirable outcome. Uncertainty should not be inflated as an obstacle to the use of Article VII(1).

Inconsistency is less of a problem, given that enforcement courts are less deferential to foreign judgments that set aside the award than foreign judgments that decide the merits of the underlying dispute.58 Just as the US Supreme Court recognised the principle of international res judicata in Hilton v Guyot,59 the enforcement courts should defer to the authority that decides the merits of the case instead to avoid re-litigating the dispute elsewhere.60

(3) Burden of having endless enforcement proceedings all over the world

The application of Article VII(1), as noted in Baker Marine,61 has the result that “a losing party will have every reason to pursue its adversary ‘with enforcement actions from country to country until a court is found, if any, which grants the enforcement.’”

The practical extent of such enforcement actions is, however, limited. The award creditor will only seek enforcement in the countries containing assets of the award debtor.62 In fact, in Yukos Capital S.A.R.L v. OAO Tomskneft VNK,63 the lack of assets was undeniably relevant even in the early stages of enforcement. In (1) X1, (2) X2 v (1) Y1, (2) Y2,64 the Dubai International Financial Courts held that the lack of assets may be a ground to refuse the enforcement.

Further, the judgment creditor is likely to narrow the scope of his enforcement actions to countries where the judgment debtors’ assets are easier to be enforced against. For instance, it is particularly difficult to satisfy the judgement debt with illiquid assets.

C. The Delocalised Approach

The alternative to the territorial approach does lend support to the idea of focusing the inquiry on the award itself. The award was considered by the French Court of Cassation in PT Putrabali Adyamulia (Indonesia) v Rena Holding65 to be “not attached to any state legal order”, but a “decision of international justice whose regularity is examined according to the rules applicable in the country where its recognition is sought". This view ought to be followed, because parties who agree to international arbitration in Convention States assume that it is the Convention that serves as the basis for enforcement, and not another country’s domestic law.66

This is buttressed Professor Gaillard’s view that arbitrators “do not derive their powers from the State in which they have their seat, but rather from the sum of all the legal orders that recognise … the validity of the arbitration agreement and the award. …” Arguably, the “sum of legal orders” is embodied by the signatories' ratification of the Convention itself.

VI. CONCLUSION

A. Implications in General

While the territorial approach has its difficulties, the delocalised approach finds little support internationally. Given that a compromise can be reached between the difficulties arising from scrutinizing the seat court’s decision to set aside, there is insufficient reason in principle for Singapore to contradict the weight of comity and uniformity by departing from the US approach. This is buttressed by the purposive interpretation of Article V(1)(e).

While sovereignty is the main feature of the delocalised approach, sovereignty is indeed respected even in the scrutiny of the seat court’s decision to set aside, without the same severe expense of certainty and uniformity in enforcement.

B. Implications for Singapore

As one of the world’s top international arbitration centres, the Singapore courts’ decisions inexorably drive the development of international arbitration jurisprudence. In this particularly divided area, with the French, US and other courts taking seemingly irreconcilable positions, Singapore’s answer is particularly pertinent in advancing international arbitration as a desirable mechanism of international dispute resolution.

The course charted by the Singapore Court of Appeal appears consistent with the goal of attaining uniformity through comity, but it remains to be seen how the Singapore courts will apply the approach. Should the Singapore courts adopt an “internationalist” stance on this matter, it would be highly persuasive in moulding the global enforcement regime to become more modern and cohesive.


* LL.B. (Hons) candidate, National University of Singapore. I record a debt of gratitude to T.G. Khoo, LL.B. (Coll. Reg. Lond.), LL.M. Candidate (Cantab.), whose invaluable learning has greatly benefited an earlier draft of this paper; and to Samuel Ang Rong En, LL.B. (Hons) candidate, NUS, for his keen insight and invaluable guidance. Any errors and infelicities are, necessarily, my own.

[1] See, “Trends of the 2017 Singapore review” (16 March 2017), Global Arbitration Review Know-How: Commercial Arbitration (blog), online: <http://globalarbitrationreview.com/know-how/results?question_ids=1000341&jurisdiction_ids=1004606&edition_id=1000012> (accessed 13 December 2017).

[2] Paul Tan & Alessa Pang, “The International Arbitration Review – Edition 8 (Singapore)” (August 2017), The Law Reviews (blog), online: <https://thelawreviews.co.uk/edition/the-international-arbitration-review-edition-8/1145747/singapore>.

[3] See Michael Hwang SC & Su Zihua, “Egregious Errors and Public Policy: Are the Singapore Courts too arbitration friendly?” (delivered at the Singapore Academy of Law Conference 2011 – Singapore Law Developments (2006–2010)) at pp. 19–55. For examples of Singapore’s firm pro-arbitration approach, see also David Williams QC, “Defining the Role of the Court in Modern International Commercial Arbitration” (Herbert Smith Freehills SMU Asian Arbitration Lecture, delivered at the Singapore Management University in 2012), online: < http://www.arbitrationconference.com/download/file/218/>.

[4] [2013] 4 SLR 972 at [1].

[5] See Sundaresh Menon SC (as His Honour then was), “International Arbitration - The Coming of a New Age for Asia (and Elsewhere)” (Conference paper delivered at the ICCA Congress 2012, Opening Plenary Session) at [5].

[6] See François-Xavier Train, “Interpretation and Application of the New York Convention in France”, in George Bermann ed., Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts (Springer, 2017) 281 at 304.

[7] 191 F (3d) 194 at 197  (2nd Cir 1999).

[8] 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959).

[9] 24 June 2002, 24 ILM 1302 (1985).

[10] Cap 143A, 2002 Rev Ed Sing.

[11] Jean Ho, “The Interpretation and Application of the New York Convention in Singapore”, in George Bermann ed., Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts (Springer, 2017) 813, at 828.

[12] [2013] 1 SLR 372 at [76].

[13] Ibid at [77].

[14] (1995) XX Yearbook Comm Arb 663–665.

[15] (1997) XXII Yearbook Comm Arb 691–695.

[16] Supra note 11, at [76].

[17] Ibid at [77].

[18] Article 1502 of the French New Code of Civil Procedure, as referred to in the judgment.

[19] Supra note 11.

[20] See supra note 9, Article VII of the New York Convention.

[21] Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[22] Nadia Darwazeh, “Article V(1)(e)”, in Kronke et al., eds, Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer Law International, 2010) 301, at 333.

[23] Ibid at 332.

[24] [2011] EWHC 1957 (Comm).

[25] Supra note 22, at 306.

[26] “United Nations Conference on International Commercial Arbitration, Summary Record of the Seventeenth Meeting,” UNESCOR, 1958, UN DOC E/CONF.26SR.17.

[27] Convention on the Execution of Foreign Arbitral Awards, 26 September 1927, 92 UNTS 301 (entered into force 25 July 1929).

[28] Supra note 24.

[29] Swiss Federal Tribunal, Switzerland, 3 January 2006, 5P.292/2005.

[30] Supra note 12, at [77].

[31] Leonard V. Quigley, “Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (1961) 70:7 Yale LJ 1069.

[32] ECOSOC, 1958, 11th Mtg, UN Doc E/Conf.26/SR.11 at 6.

[33] Emmanuel Gaillard & John Savage, eds, Fouchard Gaillard Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at 979.

[34] ECOSOC, Comments on Draft Convention on The Recognition and Enforcement of Foreign Arbitral Awards – Note of the Secretary-General, UN Doc E/Conf.26/2, March 1958) at 16-19.

[35] Supra note 22, at 327.

[36] Marike Paulsson, “Chapter 6: Resisting Enforcement of Awards”, in The 1958 New York Convention in Action (United States: Wolters  Kluwer, 2016) 157-216, at 212.

[37] Supra note 22, at 332.

[38] Jan Paulsson, “Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA)” (1998) 9:1 ICC Intl Ct Arb Bull 14 at 17.

[39] Ibid at 25, 29.

[40] Ibid at 22.

[41] 939 F Supp 907 at 911 (D.D.C. 1996).

[42] Ibid.

[43] Supra note 7.

[44] This distinction is buttressed by the refusal to enforce in TermoRio S.A.E.S.P. (Colombia) and LeaseCo Group, LLC. V Electranta S.P (Columbia) (District of Columbia 2007), in Yearbook Commercial Arbitration XXXIII (2008) (United States no. 621), at 955-969, where the award was annulled under Article V(1)(a) and (2) of the Convention.

[45] Supra note 7, at 197.

[46] Supra note 14, at [77].

[47] Supra note 22, at 326.

[48] Van Albert Jan van den Berg, “Annulment of Awards in International Arbitration” in Richard B. Lillich & Charles N. Brower, eds, International Arbitration in the 21st Century: Towards “Judicialization” and Uniformity?: Twelfth Sokol Colloquium (Irvington, NY: Transnational Publishers, 1994) 161.

[49] Pieter Sanders, “New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (1994) 6:55 Nethl Intl L Rev 199.

[50] Supra note 38, at 20.

[51] Ibid.

[52] Supra note 22, at 313.

[53] Pierre Lastenouse, “Why Setting Aside an Arbitral Award is not Enough to Remove it from the International Scene” (1999) 16:2 J Intl Arb 25 at 43.

[54] Supra note 14.

[55] Article 1502 of the NCCP did not contain grounds to the effect of Article V(1)(e).

[56] Steven L. Smith, “Enforcement of International Arbitral Awards Under the New York Convention” in Rufus von Thulen Rhoades, Daniel M. Kolkey & Richard Chernick, eds, Practitioner’s Handbook on International Arbitration and Mediation (Huntington, NY: JurisNet, 2007) I.8.

[57] Supra note 38, at 212.

[58] Supra note 22, at 332.

[59] Hilton v Guyot, 159 U.S. 113, AT 227 (1895) (Supreme Court, US).

[60] Gary H. Sampliner, “Enforcement of Nullified Foreign Arbitral Awards – Chromalloy Revisited” (1997) 14:3 J Intl Arb 141 at 160.

[61] Supra note 43, at 197.

[62] Andrew Waters & Kimberley Smith, “Enforcement of Foreign Arbitration Awards”, Arbitration: What In-House Lawyers Need to Know, (King & Wood Mallesons, 2016).

[63] [2014] IEHC 115.

[64] [2013] DIFC 2.

[65] Cass civ 2°, 29 June 2007, (2007) Rev. de l’Arb 515 at [2].

[66] Supra note 22, at 333.


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

Maxwell Chambers - The Intelligent Design by Habitap and Mr. Franklin Tang

By Perry Peh Bing Xian

In April 2018, the Ministry of Law announced that Maxwell Chambers, the world’s first integrated dispute resolution complex, will soon also become the world’s first smart hearing facility upon adoption of smart technology. Habitap was the Company responsible for the successful development of an intelligent Smartphone Application to facilitate all-in-one access to services and facilities within Maxwell Chambers. Its application has now become a centrepiece of Maxwell Chamber’s efforts to become an integrated smart hearing facility. The Singapore Law Review (“SLR”) is privileged to share the insights of Mr. Franklin Tang, the Chief Executive Officer (“CEO”) and Founder of Habitap, who kindly invited its members to sit and speak with him.

Maxwell Chambers Interview_Mr Tang_1

Background about Habitap

Habitap is Asia’s first fully integrated software platform that combines smart controls, community management and lifestyle offerings into a single platform on one Smartphone Application. It harnesses the technology behind the Internet of Things (“IoT”) and aims to create better living, greater convenience and efficiency for commercial and residential and various spaces.

Mr Tang shared with the SLR that Habitap integrates Smart Technology and the IoT as it is developed and used elsewhere (such as in the US) back into the Singapore market. Owing to differing lifestyles and habits of consumers, Smart Technologies originating from elsewhere (such as Smart Home Devices) may not necessarily be directly suitable for use by Singaporean consumers.

There were three unique features about the Singapore market and its consumers that Mr Tang thought led to the birth of the idea which became what Habitap is today. First and foremost were the different lifestyle habits of the Singapore consumer. Singaporeans are keener to leverage technology to fix problems or improve the efficiency or productivity of their lifestyle. Singaporeans were concerned with a seamless user experience rather than with the specific brand of smart controls or IoT. Hence, Habitap moved in to fill the gap by aggregating all smart controls – from various reputable applications – into a single Smartphone Application.

The second and third reasons were that Singaporeans live in large communities, and that technology is meant to serve and facilitate Singaporeans’ lifestyles. Singaporean consumers are not picky about brands but adopt services that best facilitate their lifestyle and provide convenience. That is also why Habitap works with the best service providers in the market in seeking to provide the required services through its Smartphone Applications, which are designed to support Singaporeans’ lifestyle habits.

With that vision in mind, Habitap was first rolled out for commercial projects in the mixed residential-commercial development DUO, and subsequently in the commercial development Marina One. In those cases, the Smartphone Application integrated both retail and lifestyle options and experiences into one, allowing for centralised control using Habitap’s MySphere Application. This application served as the basis for the specialized Smartphone Application now used in Maxwell Chambers.

The Smart Maxwell Initiative

The philosophy at the heart of Habitap is to “marry” and “integrate” software and technology to the brick-and-mortar experience. Concordantly, Habitap’s strength lies in software customisation – a high degree of personalisation to allow the underlying software to suit the specific needs of its users. This strength provided it with the required expertise to customise its underlying technology to facilitate the underlying processes and specific service requirements of Maxwell Chambers as an arbitration destination. Among the variety of concerns addressed, Habitap’s capacity to customize its software allowed the company to answer to the paramount importance of security and privacy to Maxwell Chambers, as well as the desire of the latter’s users for the whole process to be as efficient and seamless as possible.

Smart Maxwell is also a unique first step for Habitap as it is the first project where the front- and back-end aspects of Maxwell Chamber’s operations are managed through software alone. The Smartphone Application is meant to integrate the entire user experience from start to finish – from the day the room is booked, throughout the use of the room, and until the user experience is complete.

The Smartphone Application controls everything.

Unique challenges of the Smart Maxwell Initiative

Mr Tang shared two challenges which his team faced with the Smart Maxwell project. The first was the technical difficulties posed by the legacy of a pre-existing complex. The challenge here lay in adapting and customising Habitap to an existing building and its present facilities, especially since the venue for Maxwell Chambers had been slated for conservation by the State. The next was the need for specific software customisation, with respect to the highly specialised operating procedures and workflows of Maxwell Chambers as an arbitral destination. There were many differences that required adaptation for, such as the processes of registration, billing and usage of facilities in Maxwell Chambers which differed from those atypical in other commercial transactions. The Application therefore had to be developed and applied in the specific environment unique to Maxwell Chambers.        

More importantly, Mr Tang shared invaluable lessons which his team has acquired for this project. The Smart Maxwell initiative provided Habitap with an opportunity to explore the integration of new technology to existing infrastructure, along with customised workflows and operating procedures. While there was an initial learning curve, lessons learnt will allow Habitap to deploy the acquired knowledge on a wider scale in an analogous situation in the future should it arise. Habitap’s involvement in the Smart Maxwell initiative further strengthens its core expertise, which is that of software customisation. 

Empathising with the human factor as the key to successful adoption of technology

Finally, Mr Tang emphasised the importance of empathising with the human user for any implementation of Smart Technology to be successful. The primary impediment to wholesale adoption of technology in our lifestyles is the fear of change by a user. To ensure smooth implementation, technology must empathise with its users. In particular, it ought to notify users in advance of changes they can expect and convince them that these changes will be an improvement or useful addition to their lifestyles.

Consistent with that philosophy is the importance which Habitap places on training staff or users of technology throughout all of its projects and collaborations. This ensures that all projects can be executed effectively, and that users can adopt the Smart Technology to improve their lifestyles or enhance their operating efficiencies. Technology is after all not only about hardware and code, but that of a relationship. To convince people that technology can improve their lifestyles, there is a need to first build confidence and establish a relationship with the human user. The technology can then be implemented in stages at a pace comfortable for the user. It is with this same philosophy that Habitap approaches the Smart Maxwell initiative, and which undergirds confidence that it will be a resounding success.


The Singapore Law Review would like to thank Mr. Franklin Tang and the staff of Habitap, who have warmly extended an invitation to our members Perry Peh and Darren Teoh to speak with them. It was an opportune moment for students to learn of the insights and intricacies underpinning designs for the next step in arbitral hearings.  

For readers who would like to keep a local copy of this article, a PDF version of is also provided here.

Maxwell Chambers - a dialogue with Chief Executive, Ms Katherine Yap

By Darren Teoh

When the Singapore Law Review caught wind that Maxwell Chambers was entering a phase of expansion, we were interested in finding out what the future holds for one of the world’s leading Alternative Dispute Resolution (“ADR”) facilities. The Chief Executive of Maxwell Chambers, Ms Katherine Yap, kindly agreed to a sit-down conversation about both the road travelled, and the way ahead for Maxwell Chambers.

  Ms Katherine Yap, the Chief Executive of Maxwell Chambers.

Ms Katherine Yap, the Chief Executive of Maxwell Chambers.

When Ms Yap first began work at Maxwell Chambers as the head of communications & customer relations, the complex was still in its infancy. She joined four other colleagues in fostering the growth of the complex, when the idea of a specialised location for ADR was still relatively novel in Asia. Ms Yap recalled that the team faced issues getting manpower and improving work processes to ensure that operations ran smoothly in preparation for the complex’s opening.

As there were no seasoned members from the ADR scene on the pioneering team, ideas were borrowed from the hotel context and adapted for Maxwell Chambers, such as a lounge where clients can have coffee and relax on comfortable couches. In 2010, Maxwell Chambers was officially established as the world’s first one-stop dispute resolution hub, offering both hearing facilities as well as international dispute resolution institutions for the convenience of visiting legal practitioners.

Nine years on, Ms Yap has ascended to the position of Chief Executive, bringing with her the same vision she had from the start: for Maxwell Chambers to be the world’s top dispute resolution hub. Maxwell Chambers has received rave reviews despite its relatively short history, with the Guide to Regional Arbitration 2017 having specifically described the facilities at Maxwell Chambers as “incredible”. The Chambers have also registered a steady growth in the number of ADR cases held on the premises over the years.

  Ms Yap introduces the Lounge - a favourite feature of Maxwell Chambers among Clients .

Ms Yap introduces the Lounge - a favourite feature of Maxwell Chambers among Clients.

The Secrets of Success – how and why Maxwell Chambers shines

Ms Yap is of the view that Maxwell Chambers’ present achievements are due to a combination of factors. Chiefly, both management and staff are meticulous in rendering services to clients. For instance, although all hearing rooms in Maxwell Chambers are acoustically-treated, the customer relations staff taken further care to arrange rooms for breakout sessions. These sessions allow parties to meet their respective lawyers for discussions in physically distant locations, so as to provide an assurance of the confidentiality of each session.

Moreover, Ms Yap believes that the personalisation of services rendered can explain why clients have become Maxwell Chambers’ repeat customers. She mentioned that customer relations staff will go the extra mile to provide excellent customer service, such as catering to special requests for food and beverage. Another example which Ms Yap raised was Maxwell Chambers’ cultivation of strong relationships with hotels in the vicinity so that its foreign clients could enjoy preferential accommodation rates when they visit Singapore for ADR proceedings.

Additionally, Ms Yap feels that the team is diligent in keeping up with the latest technology and corporate knowledge to tailor its facilities for legal professionals. Her own personal decision to obtain certification as a mediator clearly reflects the critical value placed on industry knowledge, and the role that it plays in Maxwell Chambers’ business. Ms Yap also highlighted that she also embraces fresh ideas from younger employees, as they are often more in-tune with changing expectations around customer service than she is.

Finally, Maxwell Chambers is the first ADR complex which has taken a decisive step towards the technologization of various services provided to its clients, otherwise known as the “Smart Maxwell” initiative. Their aim is to boost productivity, meet the growing demand for hearings, and incur significant time and cost savings with the adoption of smart technology. She also predicted that other ADR complexes are likely to follow suit given the publicity given to “Smart Maxwell”, and thus technologization in particular ought not be seen as a panacea to all of the complex’s business challenges.

We probed Ms Yap further on what the technologization of Maxwell Chambers would look like, which she had earlier mentioned as one of the factors explaining the Chambers’ success.

Ms Yap shared that Maxwell Chambers is still on its journey towards becoming a “smart” hearing complex and that she is excited to roll out the upcoming developments by the end of this year. Maxwell Chambers’ destination in this regard is clear: through a mobile application, clients will be able to make room bookings, view amenities in the vicinity, and request for secretariat services including sending orders for printing. With a touch on their mobile devices, clients will even be able to control the room settings through their handphones, such as changing the brightness and temperature of the rooms.

Looking ahead, the most charming technological addition to Maxwell Chambers is arguably “Max”, a robot that will bring documents and food orders to individual rooms in place of customer relations staff. “Max” is fully-integrated with the aforementioned mobile application, which seamlessly communicates to the client's mobile device and application when "Max" arrives with a delivery.

Technologization brings about multiple benefits to Maxwell Chambers. Ms Yap readily brought three examples to mind. First, as the mobile application will substitute key cards in maintaining access control to rooms, the frequent occurrence of the loss of key cards would cease. This would obviate the need for ad-hoc replacements. Second, customer relations staff can minimise travelling to and from hearing rooms as they can take instructions remotely upon a client’s request for services through the mobile application. Thirdly, real-time billing through the mobile application will cut down the time required to tabulate the total charges incurred by the client during their time at the facility.

Although technology improves both the efficiency and effectiveness of the services that Maxwell Chambers provides to its clients, Ms Yap observes that there is a need to ensure that technologization does not result in a loss of the “personal touch” that she attributes the success of Maxwell Chambers to. That is why even after the mobile application’s deployment, Maxwell Chambers will seek to uphold the high standards of professionalism of its customer service. 

Entering the Second Phase of Development – Maxwell Chambers Suites and Beyond

Ms Yap explained that the increase in the number of foreign practitioners seeking to conduct ADR hearings at Maxwell Chambers, as well as the desire of current institutional partners to expand, drove the management team to search for additional space. 

Eventually, the building at 28 Maxwell Road where the Red Dot Traffic Building used to be situated, was selected. This was because the Red Dot Traffic Building’s lease was running out, and the location was sufficiently proximate such that a link-bridge could be. The link bridge is, in fact, currently being built to connect Maxwell Chambers’ main building to the new Maxwell Chambers Suites. As our curiosity about the link bridge was evident to Ms Yap, she offered us a glimpse of the “work-in-progress”.

  Construction works are currently undergoing to install a link bridge between the main building of Maxwell Chambers and the new wing within the complex, Maxwell Chamber Suites.

Construction works are currently undergoing to install a link bridge between the main building of Maxwell Chambers and the new wing within the complex, Maxwell Chamber Suites.

Ms Yap elaborated that on top of the link-bridge built between the main building and Maxwell Chamber Suites, the construction of a sheltered walkway from Tanjong Pagar MRT to the main building is work-in-progress. The completion of both construction projects will fully weather-proof access to the entire complex.

When it opens in 2019, Maxwell Chambers Suites will house 50 office spaces for dispute resolution institutions, law firms and chambers. All hearing rooms will be situated in the main Maxwell Chambers building.

Concluding Thoughts

Ms Yap is pleased that Maxwell Chambers had not received any complaints regarding customer service since Maxwell Chambers opened its doors. She hopes that Maxwell Chambers never stagnates, and that both management and staff will continue to set their sights high as Maxwell Chambers competes to emerge at the forefront of the business.

  Ms Yap, poised and confident in the future development of Maxwell Chambers.

Ms Yap, poised and confident in the future development of Maxwell Chambers.


The Singapore Law Review would like to thank Ms Katherine Yap and the staff of Maxwell Chambers, who have kindly invited our members, Perry Peh and Darren Teoh. It has been a wondrous opportunity to speak with them and immerse in the growth of the Chambers as the cornerstone of Singapore's arbitration scene.

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

By 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.


[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].


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