,

Considering Constructing Vulnerabilities in the Vulnerable Adults Act

,

Download the PDF version of this entry here.

Considering Constructing Vulnerabilities in the Vulnerable Adults Act

Goh Hui Si Priscilla

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

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

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

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

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

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

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

[1] Cap 177A, 2010 Rev Ed Sing

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

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

,

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

,

Download the PDF version of this entry here.

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

Nguyen Vu Lan

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

Truth, Forgiveness, Justice and Reconciliation

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

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

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

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

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

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

Evaluation of the Amnesty Provision

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

[4] Emphasis by author.

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

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

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

[8] Supra note 5.

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

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

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

[12] Ibid.

[13] Supra note 5.

[14] Supra note 5. 

,

Occupying New Territory: How the Tort of Occupier's Liability Fits into the Modern Day of Spandeck

,

Download the PDF version of this entry here.

Occupying New Territory: How the Tort of Occupier's Liability Fits into the Modern Day of Spandeck

Kelvin Ho

The Spandeck test established in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency1 [Spandeck] laid out a clear framework to determine duty of care in tort of negligence cases, and was further extended to apply to cases previously brought under the separate nominate tort of occupier’s liability in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd2 [STSK]. This article will evaluate the effectiveness of the Spandeck test in resolving the two main issues that plagued the tort of occupier’s liability as highlighted by the Court of Appeal in STSK, namely (1) the often illogical and arbitrary static-dynamic dichotomy, and (2) the invitee-licensee-trespasser trichotomy.

A brief outline of the Spandeck test involves the threshold stage of factual foreseeability, followed by the first stage of legal proximity between the plaintiff and the defendant to find a prima facie duty of care imposed on the latter, and then the second stage of whether there are any negating policy reasons to disaffirm this duty of care. Although it is to be applied incrementally by referring to analogous cases at each stage, the court is allowed to establish new categories of duty where appropriate.

The first problem of the static-dynamic dichotomy regarding the tort of occupier’s liability is that it is never always possible to clearly separate the static and the dynamic. The concept of static refers to the condition of the property while dynamic refers to the activities that take place on it. For example, in the seminal case of Australian Safeway Stores Proprietary Limited v Zaluzna3 [Zaluzna], the plaintiff suffered injuries after slipping on the wet floor of the foyer, which was part of the defendant’s supermarket. The Court opined that on one hand, the condition of the floor was due to the rain and was unrelated to any of the supermarket’s activity, but on the other, the supermarket was running a business at the exact premises where the accident occurred and the very movement of shoppers in the supermarket could definitely be seen as dynamic. As such, the factual matrix in Zalunza seemed to be equally susceptible to both classifications. The use of the Spandeck test can effectively eliminate this issue as it can now be transparently examined under the two stages of the test. With the application of the Spandeck framework, it is no longer necessary to distinguish between static or dynamic. This eliminates the arbitrariness and difficulty of the static-dynamic dichotomy that plagued the tort of occupier’s liability previously.

The second problem addressed by the Spandeck test is the invitee-licensee-trespasser trichotomy, which only arises when the case has been established to be one under the static category. The issue with this trichotomy is that “first (from the viewpoint of logic), it is potentially ambiguous whether an entrant is to be classified as an invitee, a licensee or a trespasser; and second (from the viewpoint of practice), the distinctions between the categories could turn on inconsequential details that potentially lead to injustice”, as opined by V K Rajah JA4. In eliminating the preliminary issue of the static-dynamic dichotomy as explained in the preceding paragraph, the Spandeck test effectively nips this problem in the bud. However, the Spandeck approach is not without its flaws in resolving cases of occupier’s liability.

When the Court first subsumed the tort of occupier’s liability under the general tort of negligence in STSK5, V K Rajah JA emphasized the control of the premises as the key factor in determining a prima facie duty of care in most cases. Admittedly, the concept behind the static-dynamic dichotomy and the invitee-licensee-trespasser trichotomy is intertwined with the idea of control, since there tends to exist a higher degree of control over the static rather than the dynamic, and similarly over an invitee or licensee as opposed to a trespasser. However, the factor of control was not explicitly examined vis-à-vis the Spandeck stages: in particular, whether control should be examined under the proximity stage or the policy stage was left unclear by the Court. Control can be discussed either way: in the proximity stage as the “defendant’s control over the source of the risk of harm to the claimant”, or in the policy stage as the defendant’s control over “a class of individuals of which the claimant is a member”, as noted by Professor David Tan in The Phoenix Rises: Resurrecting Occupier’s Liability Within The Negligence Framework6. Thus, there remains a grey area on whether the factor of control should be examined under the proximity or policy limb of the Spandeck test and this will affect future applications of the test in cases of occupier’s liability.

Assuming control is to be studied in the first stage of proximity, control itself is also insufficient to impose a prima facie duty of care, contrary to what was suggested in STSK that “control of the premises concerned is a sufficient foundation per se for imposing on an occupier a prima facie duty of care under the Spandeck approach”7. Other factors such as the occupier’s knowledge of potential entrants entering onto its controlled premises and the vulnerability of such entrants must be considered in light with the factor of control. For example, in cases where the occupiers are aware of the high possibility that children, who are usually deemed vulnerable, may trespass onto their controlled premises, there should be a closer relationship between the occupier and the trespasser. Thus, it is insufficient to use control as the only factor when considering proximity.

V K Rajah JA made an exception to this by stating that the control factor is alone sufficient when dealing with cases involving lawful entrants8. However, making this reference only seems to bring back remnants of the invitee-licensee-trespasser trichotomy which the Spandeck test initially tried to dismiss, as lawful entrants can be seen as an invitee or a licensee. In fact, the distinction of lawful and residual entrants should no longer be an issue since the enquiry is effectively subsumed under the first stage of proximity in Spandeck; by examining the circumstantial relationship between the occupier and the entrant. Thus, as Sundaresh Menon CJ9 opined, it is better to take full advantage of the flexibility of the Spandeck test itself and do away completely with the distinction between lawful and residual entrants.

In conclusion, the concept of classifying the tort on occupier’s liability under the general tort of negligence, and hence the application of the Spandeck test for cases involving occupier’s liability, was only established recently in the case of STSK in 2013. Even though it was a valiant attempt to make uniform the tort of occupier’s liability via the general Spandeck test, there are still certain unresolved areas as highlighted above, owing perhaps due to the problems in force fitting an age-old tort under an already well-established two-staged test. Nonetheless, the drawbacks of the Spandeck test can still be rectified in future cases, such as clearly defining the factor of control as either a stage one or stage two consideration. Indeed, since the origins of the primary issue of occupier’s liability, being the static-dynamic dichotomy, was “not founded on logic or principle” but rather because “it is rooted in convoluted English legal history” 10, the application of a more recent and established approach such as the Spandeck test in such cases is still very much welcomed.

[1] Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency, [2007] SGCA 37, [2007] 4 SLR (R) 100.

[2] See Toh Siew Kee v Ho Ah Lam Ferrocement, [2013] SGCA 29, [2013] 3 SLR 384.

[3] Australian Safeway Stores Proprietary Limited v Zaluzna, [1987] HCA 7, [1987] 162 CLR 479.

[4] Supra note 2 at [48].

[5] Supra note 2 at [100].

 [6] [2013] 21 TLJ 59 at page 70.

[7] Supra note 2 at [100].

[8] Ibid at [80].

[9] Ibid at [130].

[10] Ibid at [21].

,

The Tangle of the Tort of Unlawful Means Conspiracy

,

Download the PDF version of this entry here.

The Tangle of the Tort of Unlawful Means Conspiracy

Laura Lim

In EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd1 [EFT], the Singapore Court of Appeal (SGCA) discussed the tort of unlawful means conspiracy. While the Court addressed several interesting questions, much was ultimately left to be decided in future cases. Although arguably the more prudent approach, this leaves the tort of unlawful means conspiracy in a tangled mess. Of all the unanswered questions about the tort, one strikes me as particularly fundamental, but was scarcely addressed in EFT – precisely what constitutes “unlawful means”? At first blush, the answer may seem simple enough, but the history of the tort and its development in other jurisdictions suggest that there is more than meets the eye. Before we proceed, it may be useful to understand the elements of unlawful means conspiracy as helpfully laid out by the SGCA in EFT2:

  1. there was a combination of two or more persons to do certain acts;
  2. the alleged conspirators had the intention to cause damage or injury to the plaintiff by those acts;
  3. the acts were unlawful;
  4. the acts were performed in furtherance of the agreement; and
  5. the plaintiff suffered loss as a result of the conspiracy.

The scope of “unlawful means” therefore evidently relates to the substance of the third element. This requirement of unlawfulness is particularly crucial to distinguish unlawful means conspiracy from conspiracy by lawful means, which is a separate tort requiring not only that the alleged conspirators had the intention to injure the plaintiff (as per element (2)), but that they did the acts with the predominant intention of injuring the plaintiff.

In considering the substance of “unlawful means”, perhaps the best starting point is a statement by Lord Walker in the case of Total Network SL v Revenue and Customs Commissioners3, cited with approval by the SGCA in Beckkett Pte Ltd v Deutsche Bank AG4, that “unlawful means, both in the intentional harm tort and in the tort of conspiracy, include both crimes and torts (whether or not they include conduct lower on the scale of blameworthiness)”. This statement not only (1) suggests that the content of “unlawful means” includes “crimes and torts”, but also (2) reminds us of similar torts involving “unlawful means” such as the intentional harm tort. These will be examined in turn.

Firstly, specifying the content of “unlawful means” to include “crimes and torts” seems intuitively fair. Given that this is not an exclusive definition, however, it remains unclear if other forms of “unlawful” behaviour can also be considered. Pertinently, it remains to be determined if a breach of contract or a breach of confidence constitutes unlawful means for the purpose of establishing unlawful means conspiracy (as has been held in several High Court cases5 in which the breaches were simply assumed to be unlawful). Given the existence of the tort of lawful act conspiracy, which has a higher threshold for establishing intention, it is submitted that as long as the distinction between lawful and unlawful conspiracy is preserved, a breach of contract or confidence would have to be considered “lawful” so as not to render the tort of lawful act conspiracy devoid of substance and, consequently, otiose6.

Secondly, the question of what constitutes “unlawful means” may ultimately turn on the larger issue of whether the tort of unlawful means conspiracy can be considered a species tort to the genus of a broader unlawful means tort or the general body of economic torts such as conspiracy, indirect interference with contract, and intimidation. This issue is relevant to the discussion about “unlawful means” because the term is often an element that requires definition in these torts. While the question of whether to consider the torts together was discussed by the SGCA in EFT, the court eventually made no definite pronouncement. The furthest the court went was to note that while economic torts were traditionally understood as being related, this view has since been rejected by the House of Lords in OBG Ltd v Allan7 [OBG] on the basis that each tort within the supposed “genus” is in fact supported by a distinct underlying rationale.

It would be helpful for the SGCA to clarify whether or not a unified body of economic torts can be said to exist in Singapore. If the English position in OBG is accepted, the task of clarifying the content of “unlawful means” in the tort of conspiracy becomes much less daunting, since courts would no longer have to consider the many potential knock-on effects on other doctrines. Conversely, if Singapore courts reject the English position and recognise a unified doctrine of economic torts, it becomes all the more critical to develop a robust definition of “unlawful means” to apply uniformly to the whole body of economic torts for the sake of clarity and doctrinal coherence.

Until then, this area remains mired in uncertainty.

[1] [2013] SGCA 64, [2014] 1 SLR 860.

[2] Ibid at [112].

[3] [2008] UKHL 19, [2008] 1 AC 1174.

[4] [2005] SGCA 34, [2009] 3 SLR (R) 452 at [120].

[5] See The Monarch Beverage Company (Europe) Ltd v Kickapoo (Malaysia) Sdn Bhd [2009] SGHC 55; Nagase Singapore Pte Ltd [2007] SGHC 169, [2008] 1 SLR(R) 80; Clearlab SG Pte Ltd v Ting Chong Chai [2014] SGHC 221, [2015] 1 SLR 163.

[6] See Lee Pey Woan, "A Rare Case of Conspiracy by Lawful Means", Singapore Law Blog (25 December 2014) (http://www.singaporelawblog.sg/blog/article/72), in which Lee notes that in SH Cogent Logistics Pte Ltd v Singapore Agro Agricultural Pte Ltd [2014] SGHC 203, “possibly the first and only instance of lawful means conspiracy in Singapore”, the means employed by the defendants were “not, on closer examination, entirely lawful in nature”.

[7] [2007] UKHL 21, [2008] 1 AC 1.

,

Cooperation and Concession: Whaling in the Antarctic (Australia v Japan: New Zealand Intervening)

,

Download the PDF version of this entry here.

Cooperation and Concession: Whaling in the Antarctic (Australia v Japan: New Zealand Intervening)

Reuben Ong

PART I: INTRODUCTION

In its most recent judgment, the International Court of Justice (ICJ) ruled against Japan on the issue of whether its whaling program, JARPA II, complied with Art VIII of the International Convention for the Regulation of Whaling (ICRW). Interestingly, instead of subjecting JARPA II to an objective review based on the relevant international framework, the Court seemed content to focus on a standard of review based on Japan’s own self-conceived and conceded standards. Based on JARPA II’s own objectives, the Court then found inconsistencies between those objectives and key elements of JARPA II’s methodology; particularly, the usage of lethal sampling. This short commentary will briefly examine the merits of the Court’s focus on cooperation and concession, and will discuss whether this cautious approach is the best way forward.

PART II: CASE SUMMARY

Although commercial whaling has been banned ever since a 1982 moratorium adopted by the International Whaling Commission (IWC), Art VIII of the ICRW permits whaling for “purposes of scientific research”.1 Under this veneer of compliance, Japan continued the harvest and distribution of whale meat for consumption under the auspices of its allegedly scientific whaling programs—JARPA and JARPA II. The controversial program continued into the 21st century, until 2010 where Australia formally instituted proceedings against Japan.

In argument, Australia submitted that JARPA II should be subjected to an objectively ascertained standard of scientific rigour. Japan countered that each nation reserved the right to issue whaling permits at its own discretion, and that any resolutions proposing an objective standard were at best recommendatory. Although the court agreed that the standard of “scientific purpose” cannot depend simply on each state’s perception,2 it ultimately declined to define an objective standard, noting that “scientific research” is not defined in the ICRW.3 Instead, the Court based its review on JARPA II’s own stated research objectives. Ultimately, inconsistencies between its objectives, methodology and implementation led to the finding that the lethal sampling of whales under JARPA II was not reasonable in relation to achieving its objectives.4

PART III: DISCUSSION

The overall tenor of academic response to the decision has been rather subdued. Most were disappointed by what they perceived as the Court’s failure to enunciate a clear standard of scientific review. However, due consideration must be given to motives behind the Court’s rather cautious approach. By declining to give a definitive meaning to “scientific research”, the Court probably had an eye on acting de lege ferenda; amidst a sea of obligations both binding and non-binding, the Court was rightly wary of transforming mere recommendations into binding orders.5 In so doing, the Court deftly sidestepped the need to give a definition of a controversial and multifaceted term. Instead of imposing its own interpretation of an international framework on Japan, the Court based its decision on relatively uncontroversial benchmarks—JARPA II’s own stated research objectives, as well as legal obligations which Japan conceded it owed. Doling out equal parts justice and diplomacy, the Court astutely framed Japan’s obligation in terms of a duty to cooperate within a self-conceived and conceded standard of review.6

A growing willingness to defer to each state’s interpretation of what constitutes a scientifically rigorous research plan seems evident in the Court’s approach of ‘reasonableness’. Telesetsky, Anton and Koivurovac argue that the Court’s focus on ‘reasonableness’ shifted the burden of proof from Australia having to prove bad faith, to Japan needing to demonstrate that its methodology, design and implementation of JARPA II was reasonable.7

It has been further argued that the ‘reasonableness’ test formulated might be exported to other issues that are not necessarily scientific in nature.8 If this approach were adopted in a general manner, it would underscore the greater emphasis on cooperation and concession in the enforcement of international law.

PART IV: THE WAY FORWARD

The cautious approach undertaken by the Court has left questions as to its efficacy. A few months after JARPA II was shut down by the ICJ, Japan announced that its whaling program would be resurrected under a scaled-down program called NEWREP-A.9 A similar but smaller whaling program which Japan conducts in the North Pacific, JARPN, was not even the subject of argument during the proceedings, and will carry on unhindered.10 Conservationists may be forgiven for thinking that the decision confers no lasting legal protection on whales.

Be that as it may, the Court’s approach represents a win from a compliance perspective. Although NEWREP-A is a whaling program similar in many respects to JARPA II, Japan acknowledged the decision and stated that it would abide by it. NEWREP-A is only at the proposal stage, and Japan has made clear that it would consider the advice of the IWC’s Scientific Committee in ensuring that the program design complies with the spirit of the Australia v Japan decision.11

In sum, the Court’s cautious approach based on cooperation and concession deserves credit where it is due. Although it does not go far enough to please hardline conservationists, it has nudged Japan in the direction of greater accountability. By confining its comments strictly to JARPA II, the Court succeeded in stopping JARPA II and programs of its scale, without foreclosing the possibility of smaller programs by Japan. The Court has thus once again showed its penchant for eschewing a winner-takes-all solution in favour of one which gives both parties something to take home.

[1]  International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 74, [1948] ATS 18.

[2] Case concerning Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment of 31 March 2014, online: International Court of Justice < http://www.icj-cij.org/docket/files/148/18136.pdf> [Whaling] at para 61.

[3] Ibid, at para 86.

[4] Ibid, at para 127.

[5] Erik Franckx, “The Legal Nature of Resolutions of Intergovernmental Organizations: The Contribution of the Whaling in the Antarctic Case” (Lecture delivered at the Japanese Society of International Law), at 9.

[6] Ibid, at 13.

[7] Anastasia Telesetsky, Donald K Anton & Timo Koivurova, “ICJ’s Decision in Australia v Japan: Giving up the Spear or Refining the Scientific Design?” (2014) 45:4 Ocean Development & International Law 328 at 336.

[8] Ibid.

[9] Japan, Ministry of Agriculture, Forestry and Fisheries, Proposed Research Plan for New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A) (Nov 2014).

[10] Jeffrey J Smith, “Evolving to Conservation?: The International Court’s Decision in the Australia/Japan Whaling Case” (2014) 45:4 Ocean Development & International Law, 301 at 303.

[11] Japan, Chief Cabinet Secretary, Statement by Chief Cabinet Secretary, the Government of Japan, on International Court of Justice “Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)“, 31 March 2014, <http://www.mofa.go.jp/press/danwa/press2e_000002.html>.

,

Successor Liability: Acquirers of Indian Businesses beware!

,

Download the PDF version of this entry here.

Successor Liability: Acquirers of Indian Businesses Beware!

Harsh Kumar*

In India, the principle of successor liability typically applies in mergers of companies, transactions for the fraudulent purpose of escaping liability for the seller’s obligations, or situations where it is imposed by statute (for example, cases involving the breach of environmental law or certain labour laws.1) However, the Indian Supreme Court has, in McLeod Russel India Limited v Regional Provident Fund Commissioner, Jalpaiguri and others2, recognised the principle of successor liability in the case of a business transfer, for historical non-compliances by a seller in payment of provident fund (social security) dues.

BACKGROUND

McLeod Russel India Limited (“Acquirer”) acquired M/s Mathura Tea Estate (“Business”) from Saroda Tea Company Limited (“Seller”) pursuant to a Memorandum of Understanding (“MOU”). At the time of the acquisition of the Business, the Seller had an outstanding claim for provident fund payment to its employees under the Employees’ Provident Funds and Miscellaneous Provisions Act, 19523 (“EPF Act”). The Acquirer discharged the provident fund dues of employees who were transferred to the Acquirer as part of the Business. However, the Acquirer sought to ring-fence its liability for damages on account of non-payment of the provident fund contributions. Accordingly, the MOU recorded the Seller as exclusively liable for the damages resulting from its failure to pay provident fund contributions to the employees of the Business, prior to the date of transfer of the Business.

In respect of proceedings before the Regional Provident Fund Commissioner (“RPFC”), the Acquirer sought to absolve itself from any liability for damages on the basis that historical non-compliances with the EPF Act were to the Seller’s account, as such non-compliances occurred prior to the date of transfer of the Business. Under section 17B of the EPF Act, an acquirer is jointly and severally liable with the seller for non-payment of provident fund dues prior to the date of transfer of an establishment or business. However, there prevailed divergent views amongst the various High Courts in India regarding an acquirer’s liability to pay for damages for past non-compliances with the EPF Act. Nonetheless, on a conjoint reading of the relevant sections of the EPF Act, the RPFC held that the Acquirer and the Seller were jointly and severally liable for damages for non-payment of provident fund dues prior to the date of transfer of the Business. Accordingly, the RPFC imposed a penalty on the Acquirer for its delay in depositing damages within the period stipulated by law.

The Acquirer challenged the decision of RPFC before a single-judge bench of the Kolkata High Court. The single-judge bench upheld the Acquirer’s appeal on the basis that no punitive liability could arise on the Acquirer, for historical non-compliances by the Seller, prior to the date of transfer of the Business. On a further appeal, the division bench of the Kolkata High Court reversed the order of the single-judge bench by relying on a previous judgment rendered by the division bench of the Kolkata High Court. Aggrieved by the judgment of the division bench, the Acquirer filed an appeal before the Supreme Court challenging that judgment.

SUPREME COURT'S VERDICT

The issue before the Supreme Court was whether the Acquirer was liable for the Seller’s non-compliance in paying provident fund dues. Based on a review of sections 14B and 17B of the EPF Act, the Supreme Court held as follows: (a) damages, on account of non-payment of the provident fund dues was a joint and several liability of the Acquirer and the Seller (regardless of the date of transfer of the Business), (b) transfer of the Business did not preclude an employee of the Business from initiating a case against the Acquirer and/or the Seller for recovery of his statutory dues; until an employee’s provident fund dues were paid, such dues would have the first charge over the assets of the Business in priority to all other debts of the Business, and (c) liability of the Acquirer for previous non-compliance by the Seller with the EPF Act could not be assigned or mitigated through any contractual arrangement. Per section 17B of the EPF Act, the Acquirer’s liability extended up to the value of the assets acquired by it.

IMPLICATIONS OF THE JUDGMENT

The Supreme Court has clarified that, in the case of a transfer of a business or establishment, in respect of which provident fund dues are pending, the seller and the acquirer will be jointly and severally liable to pay not only the pending provident fund amount but also damages, if any, imposed by the government authorities. It is now imperative for an acquirer to undertake a detailed diligence on the status of provident fund payments by a company or establishment, otherwise it may have to shoulder all pre-closing provident fund liabilities.

From a transactional perspective, acquirers of a business should consider an escrow to appropriately ring-fence their liability for provident fund dues of a company or establishment. If an escrow is not commercially feasible, then acquirers may consider adjusting the valuation for the business, or seeking a specific indemnity from the seller for liabilities not expressly assumed by the acquirers. An insurance cover may also be obtained to appropriately safeguard against pre-closing liabilities. These safeguards and the manner in which parties will bear associated costs for implementing these safeguards should be negotiated with the seller while finalising the business purchase agreement.

*Mr Harsh Kumar is Associate Partner in the Corporate (M&A and Private Equity Team) at Khaitan & Co, New Delhi. The Singapore Law Review would like to thank Mr Kumar for his contribution to Juris Illuminae.

[1] Please see Central Inland Water Transport Corporation. Ltd. v Workmen (1975) SCC 348, (1975) Supp. SCR 4434, and Anakapalla Cooperative Agricultural and Industrial Society Ltd. v Workmen (1963) Supp.1 SCR 730, where the Supreme Court set out the factors that ought to be taken into consideration before determining whether a transferee was a successor-in-interest of the transferor in respect of a business carried on in an establishment transferred to the transferee. 

[2] 2014 (8) SCALE 272.

[3] (19 of 1952).

,

Downstream Investments in India

,

Downstream Investments in India

Akshata Srinath

Foreign investment coming into India comprises of both direct and indirect investments. These investments are from non-residents and resident Indian entities. A Downstream Investment1 means such investment which is indirect foreign investment by one Indian company into another Indian Company by acquisition of shares and way of subscription. The framework until 2009 depended upon the press release by the DIPP wherein prior permission was required to be taken from Foreign Investment Promotion Board (“FIPB”) or any other concerned authority. The complication further arose when there were investments made by foreign owned Indian holding companies where not only the prior permission was required, but pre-requisite conditions were to be fulfilled, which included to keep checks on the foreign equity levels and the time period to keep track of the transfer.2 To understand such investment structure, it is important to analyse the key issues involved wherein before due diligence initiates all the parties to the transaction need to understand the investment structure along with the other approvals required from the relevant authorities.

A Core Investment Companies (“CICs”) also known as a ‘shell company’ is the company which only exists in India for the purposes of investment in other Indian companies.3 A foreign owned Indian company which is a CIC requires to fulfillment of the conditions of the regulations framed by the Reserve Bank of India (“RBI”). CICs, as per the law, needs to be registered with the RBI and they need to obtain a Certificate of Registration. It is to be noted that neither the amount being invested nor the ownership or the control of the CICs is significant for acquiring the approvals. Furthermore, when such downstream investments are made through such companies, it will need to comply with other subsequent and relevant conditions on entry route, other caps and conditions. Also while allowing such foreign investments to come in India. FIPB approval along with the RBI approval is required.4 Furthermore, the guidelines also bring out the procedure for the calculation of foreign investment in Indian Companies, transfer of ownership and control of Indian Companies along with the downstream investment of the Indian Companies.

Consequently, after seeing into the foreign investment rules and regulation, it can be indicated that even if a company tries to bring in investment in India without any approval by the relevant authorities, the foreign owned Indian company needs to make a report/disclosure to the RBI at the end of the financial year, declaring the utilization of the said investment made. Moreover, for the purpose of downstream investment, the Indian companies making the downstream investments would have to bring in requisite funds from abroad. As the new policy steps in, funds from the domestic market cannot be used. However this does not preclude downstream operating companies, from raising debt in the domestic market. Downstream investments through internal accruals are permissible by an Indian company, subject to the provisions of clause 65 which proposes a suitable regulatory framework for the CICs to comply with the registration process with the RBI. The RBI has also made further clarification on when a downstream investment is made by an Indian company which is not owned and controlled by residents into another Indian company, this investment will be subjected to the sectoral norms on entry route, conditions and caps applicable to the sector in which latter company operates.6

When downstream investments are made by a CIC which is owned and controlled by a non resident entity, further notification needs to be made to the Department of Industrial Policy & Promotion (“DIPP”) and Secretariat for Industrial Assistance (“SIA”) along with FIPB and RBI.7 Also issue, transfer pricing and valuation of shares should be in accordance with the Securities and Exchange Board of India (“SEBI”).8 The Indian company needs to comply with the provisions of the Companies Act 1956 like investments by the way of induction of foreign equity needs to be backed up by a resolution of the Board of Directors and a shareholders’ agreement.9

Therefore, the parties before the commencement of the process of due diligence, should clarify any concerns with respect to the above mentioned laws, the suitability of the investment structure to bring in foreign investments in the company, clarity on whether certain approvals are applicable to them or not.

[1] The term ‘Downstream Investment’, is widely used in practice but it is not specifically defined. It only came into definition by the Press Note 4 [2009 Series] issued by the Department of Industrial Policy & Promotion, Government of India (DIPP) as indirect foreign investment by one Indian company into another Indian company by way of subscription or acquisition in terms of Press Note 2 of 2009.

[2] “Press Note No. 9 (1999 Series)” Government of India, online: <http://dipp.gov.in/English/acts_rules/Press_Notes/press9_99.htm>.

[3] “Master Circular– Regulatory Framework for Core Investment Companies (CICs)” Reserve Bank of India, online: <http://www.rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=7391>. It has to be understood that any such method in which investments enter in India, need approval from the RBI which includes declaration of the amount of investment coming into the company.

[4] “Foreign Investment in India – Guidelines for calculation of total foreign investment in Indian companies, transfer of ownership and control of Indian companies and downstream investment by Indian companies” Reserve Bank of India, online: <http://rbidocs.rbi.org.in/rdocs/Notification/PDFs/01APDIR040713.pdf>.

[5] “Regulatory Framework for Core Investment Companies (CICs)” Reserve Bank of India, online: <http://www.rbi.org.in/scripts/NotificationUser.aspx?Id=5944&Mode=0>.

[6] Supra note 4.

[7] “Consolidated FDI Policy” Government of India (5 April 2013) online: <http://dipp.nic.in/English/Policies/FDI_Circular_01_2013.pdf>, “Press Note No. 6 (2013 Series)” Government of India online: <http://dipp.nic.in/English/acts_rules/Press_Notes/pn6_2013.pdf>.

[8] “Foreign Investments in India” Reserve Bank of India, online: <http://www.rbi.org.in/commonman/English/scripts/faqs.aspx?id=15>.

[9] Indian Companies Act, 1956, Act No. 1, s 31, s 40, and s 94 (1)

,

Consent in the context of rape: a discussion

,

Consent in the Context of Rape: A Discussion

Ng Teng Wei

INTRODUCTION

In R. (F) v Director of Public Prosecutions,1 the English High Court examined the issue of consent in a case of rape. The case was an application for judicial review by the claimant against the Director of Public Prosecutions’ refusal to prosecute the intervener for rape and/or sexual assault.

THE UK DECISION

In R. (F) v Director of Public Prosecutions,2 the claimant had suffered from an abusive relationship with her former partner, with whom she had been in an Islamic marriage with, though they had never lived together. The proceedings came about after the claimant had agreed to sexual intercourse with the intervener with the condition that the intervener would not ejaculate into the claimant’s vagina. The intervener, however, ejaculated inside the claimant. The claimant subsequently made a police report, but the Director of Public Prosecutions decided not to prosecute. Hence, the claimant claimed judicial review of the refusal to prosecute.

The Lord Chief Justice, delivering the judgment, first considered the case of Assange v Swedish Prosecution Authority 3 [Assange], where the accused, while knowing that the victim’s prerequisite to consent to sexual intercourse was for the accused to wear a condom, consummated unprotected sexual intercourse with the victim. In Assange, the English High Court held that:

“if [the victim] had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.”4

The Lord Chief Justice then noted that ejaculation is irrelevant to the definition of rape under Section 1(1) of the Sexual Offences Act 2003,5 but that ejaculation may be an aggravating factor in sentencing.6 The Lord Chief Justice then noted the ‘choice’ is crucial to the definition of consent in Section 74 of the Sexual Offences Act 2003, 7 and concluded that:

“[i]f before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.” 8

THE LAW

The English High Court had basically laid down 3 rules for the law of consent in sexual offences:

  1. If there are preconditions to sexual intercourse, default of a precondition before or at the point of penetration would amount to a withdrawal of consent to sexual intercourse. (The principle as laid out in Assange.)
  2. Accidental default of a precondition to sexual intercourse would not negate consent.
  3. Penetration with the intention of defaulting a precondition to sexual intercourse, with the defaulting of that precondition occurring during or after penetration, would negate consent. (Note that it is unclear whether the consent is withdrawn at the point of such formation of intention, or whether consent is withdrawn at the point of the default of the precondition, or whether consent is retrospectively negated ab initio after the occurrence of the default of the precondition. Whether or not this matters is unclear.)

These three rules reflect this idea of “conditional consent”. The underlying principle behind these three rules is that the freedom of choice of both parties has to be respected. 9 When a party is robbed of free choice, then sexual penetration would be regarded as rape.

THE LAW IN SINGAPORE

In Singapore, there is no statutory definition of consent, though Section 90 of the Penal Code 10 does indicate situations where consent is vitiated. However, in Public Prosecutor v Iryan bin Abdul Karim 11 [Iryan], the Singapore High Court adopted the definition in Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, Vol 2 12 that:

“[c]onsent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent… Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to (emphasis mine); it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.” 13

This definition places emphasis on free choice, similar to s74 of the UK Sexual Offences Act 2003.14 Hence, it is likely that Singapore would adopt a similar stance to that of the UK High Court if a similar case were to be pleaded before the Singapore Courts.

However, there are some points that require clarification with regards to the law of consent in this regard.

A. Consent to What?

Firstly, what is the focus of the law of consent in a case of rape? Where consent has been given for penetration, though there is forbiddance of internal ejaculation, does the law of consent consider merely whether there was consent to sexual penetration, or is it much more than that? Section 375(1) of the Penal Code 15 states:

“Rape

375 —(1) Any man who penetrates the vagina of a woman with his penis —

(a) without her consent; or

(b) with or without her consent, when she is under 14 years of age,

shall be guilty of an offence.” 16

This statute alone suggests that consent here refers to consent to sexual penetration alone. However, when read with the definition of consent in Iryan,17 it becomes clear that the express forbiddance to internal ejaculation must not be regarded separately from the consent to penetration, as the express forbiddance is part of the “freely exercised choice” to the assent to penetration and disregard for the forbiddance would amount to robbing the party of the freedom “to forbid or withhold what is being consented to”. Thus, the ruling in R. (F) v Director of Public Prosecutions 18 would appear to agree with that in Iryan.19 Nevertheless, it is to be noted that the Court of Appeal of Singapore has yet to endorse the Iryan 20 definition of consent, and it may yet reduce uncertainty if we were to include this definition in the Penal Code.21

B. Limits to Conditional Consent

Secondly, should there be a limit to the types of conditions which when in default would negate consent? Whilst the preconditions of using protection before penetration or requiring withdrawal pre-ejaculation should be awarded protection, what about other preconditions?

Consider the situation where a woman insists that the man must make a certain amount of cash before she would agree to intercourse. If the man lies, and sexual intercourse occurs, would consent have been negated such that the man has committed rape?22 Despite the immorality of such a lie, should the man be branded a rapist and be incarcerated?

Former Barrister Laura Perrins believes that “the criminal justice system – the greatest weapon in the State’s hand when condemning a citizen’s behaviour – should be slow to fill the vacuum left by a collapse in moral standards. Dr Jonathan Rogers, senior lecturer of laws at University College London, says: “I wouldn’t go so far as to say that there is no possible place for conditional consent, but we could certainly get by without using it.”23 Clearly there must be a line drawn when it comes to the type of pre-specified conditions which, in default, would negate consent. The English High Court did not test the boundaries of conditional consent, and this doctrine is yet untested in Singapore, though this could further muddy the waters in the difficult doctrine of consent. Yet, it may be that conditional consent, in light of R. (F) v Director of Public Prosecutions,24 would be a necessary tool in delineating whether consent had been given.

CONCLUSION

The doctrine of consent has always been difficult to grasp and delineate. However, this writer would agree that the ruling in R. (F) v Director of Public Prosecutions 25 is correct, though the court could afford to further explore the limits and boundaries of conditional consent.

It is interesting to note that this case has been hyped up by the media, proclaiming that there can be rape even when there is consent.26 This is not really true, as the consent is negated when the preconditions are not met, and thus there is no longer any valid consent to begin with. In reality though, behind all the fuss, let us all not forget that it is actually very simple. As Ally Fog puts it, “[i]f you do something to someone’s intimate bits (or with your intimate bits) which you know s/he has not consented to or is unable to consent to at that moment, you are committing an act of sexual assault or rape.” 27 There, it is as simple as that.

[1] [2013] 2 Cr. App. R. 21.

[2] Ibid.

[3] [2011] EWHC 2849.

[4] Ibid at [86].

[5] 2003 c 42 (UK).

[6] Supra note 1 at [21].

[7] Supra note 4.

[8] Supra note 1 at [26].

[9] Ibid.

[10] Penal Code (Cap 224, 2008 Rev Ed Sing).

[11] [2010] 2 SLR 15.

[12] Ratanlal and Dhirajlal, Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, Vol 2 (Bharat Law House, 26th Ed, 2007).

[13] Ibid at p 2061.

[14] Supra note 4.

[15] Supra note 8.

[16] Supra note 8, s 375(1).

[17] Supra note 9.

[18] Supra note 1.

[19] Supra note 9.

[20] Supra note 9.

[21] Supra note 8.

[22] Consider also the scenario of the alleged karate champion as mentioned by Nicholas J. McBride, Fellow, Pembroke College, Cambridge, on the first page of his article. Nicholas J. McBride, “Rape and Consent” <http://mcbridesguides.files.wordpress.com/2012/08/mcbride-rape-and-consent.pdf>, p 1.

[23] Laura Perrins, ” Did you know the legal definition of rape and ‘consent’ is changing? Here’s how” The Telegraph (19 September 2013), online: The Telegraph <http://www.telegraph.co.uk/women/womens-life/10319902/Did-you-know-the-legal-definition-of-rape-and-consent-is-changing-Heres-how.html>.

[24] Supra note 1.

[25] Supra note 1.

[26] “Sex consent could lead to rape charge, judges say” BBC News UK (24 April 2013), online: BBC <http://www.bbc.co.uk/news/uk-22281457>; “Sex with consent ‘can still be rape'” Metro News (24 April 2013), online: Metro <http://metro.co.uk/2013/04/24/sex-with-consent-can-still-be-rape-3665975>.

[27] Ally Fog, “Consensual sex and rape – it’s really very simple” The Independent Voices (25 April 2013), online: The Independent <http://www.independent.co.uk/voices/comment/consensual-sex-and-rape–its-really-very-simple-8588287.html>.

,

Powerful to build, powerless to defend

,

Powerful to Build, Powerless to Defend

Lim Wei Zheng

The silent builders of our home and economy have begun to vocalize their thoughts. The landmark SMRT Bus workers strike1 raised a few eyebrows, but raised more questions – as does the increase in migrant workers falling to their deaths2. What have they fallen into? What systemic pit have we built for these workers?

Their hands have painstakingly built the hardware and software of our country. Yet, these who are powerful to build and man the social frameworks of our society, are powerless to defend themselves against the socio-legal labyrinth they find themselves trapped in. The recent spate of workmen accidents and exploitation suggests that the element of control may undermine the freedom of contract in terms of the formation and enforcement of contract. The control imbalance between the employers and migrant workers severely skews the bargaining power workers have in negotiating and enforcing the terms of their contract.

This warrants first an examination of the control disparity between employers and migrant workers, and how this disparity is more pronounced for migrant as opposed to local workers. This will be followed by a discussion of the non-contractual remedies available in tort and statute. The impact of this control imbalance on the formation and enforcement of the contract, as well as the remedies available to the workers will then be examined. It is submitted that the private law system, in theory, does have legal recourse available to these workers, but the realities of control and evidentiary burdens render these unavailable. Instead, policy should work to equalize the disparity through imposition of legislative frameworks.

Indeed, locals and migrant workers may be subject to the same employers, but what is it exactly about these migrant workers that make them exceptionally vulnerable, as opposed to local employees? Beyond their unfamiliarity with our language and legal system, the answer lies in what these workers left behind – their homes. A nagging threat preventing transient workers from raising or enforcing legal claims they have would be the threat of repatriation – a threat that lacks the same force for local employees. Workers stand to lose too much in the face of repatriation – they have invested too much in the journey here that they would stand to lose much financially and emotionally were they to return empty handed. Too many shackles chain transient workers to their jobs in Singapore – even before they touch down at our sunny shores. Placement and agent fees leave them with debts3 that must be repaid before they may return home. Delays in payment of wages force them to remain in Singapore to pursue their claim. Arbitrary deductions for sick leave, informal saving schemes and rent compel them to work overtime to earn back what was lost4. The threat of repatriation is a very real one, as it prevents workers from pursuing any claims they have against their agents and employers5. Besides threatening their financial position, repatriation threatens their social status back home, due to the shame of returning as “failed migrants”, particularly for male migrant workers6. The threat is accentuated by the ease with which repatriation can be done legally or illegally. Legal means allow employers to unilaterally cancel or refuse to renew work permits7, rendering what was legal today, an illegal overstaying tomorrow. Alternatively, employers may enlist the services of repatriation officers, to forcefully repatriate8 workers who are unwanted, or to cause workers to disappear before their case may be heard before the courts9. This control imbalance, where workers have a compelling reason to stay in Singapore, but employers have the power to make them leave before their time is up, causes employers to have a stronghold over more than the workers’ pay – but also the workers’ safety.

This control imbalance has the power to exacerbate the workers’ physical, mental and economical safety. Repatriation in itself involves the tortious offences of battery; assault and false imprisonment, which threaten both the worker’s physical and mental safety. The motive behind forceful repatriation seeks to deny the worker his rightful claim to his due wages, threatening the worker’s financial safety. While in theory, workers may try seeking legal recourse by calling the police before filing criminal or civil claims10, in practice, repatriation companies are viewed as a legal means of safeguarding the employers’ security bond11, and thus enforcement agencies may be reluctant to intervene.

Beyond actual forceful repatriation, which may be a reality for a number of workers, the control imbalance caused by the threat of forceful repatriation further threatens the safety of many, when safety regulations imposed by statute12 go unenforced due to the threat. While in practice employers have an onerous, direct and non-delegable duty to ensure workers safety by imposing a safe system of work13 in statute and under common law, the control imbalance lends them license to not enforce such precautions, especially if it would save costs and time. Unfortunately, it does not save lives14. Definitely, not every employer is guilty of flouting such safety rules, but enough are, to pose a threat to the lives of the workers who pass through their hands15. In certain instances, threats of repatriation may even suffice to cease protests16 against commands to flout safety regulations17.

This problem is heightened when the flouting of safety regulations actually results in accidents. Under the Work Injury Compensation Act18, compensation seems to be a simple matter in that the claimant simply has to suffer from the respective afflictions. However, it is a complex issue in reality, where a heavy evidentiary burden lies upon the worker to prove the injury, as there are no formalized systems of documenting proof. There is no standardized procedure across the medical profession as a whole as to collecting testimonial evidence concerning the worker’s injury. For instance, there are no guidelines stipulating that both the workers and employers’ account of the accident should be noted down. It is understandable that in a large percentage of cases, doctors would prefer to hear an account of the accident from primarily the employers, as there is a smaller language barrier to surmount. Further, where concrete evidence such as closed-circuit television footage of the accident is available, they usually lie in the hands of employers, who can choose not to hand it over. The lack of formalized systems to help workers formally document proof, lend workers no avail when employers counter-claim that the employee’s injury was not work-related19.

Beyond legal recourse in criminal, statutory and tort law, workers theoretically have recourse in contract law. Firstly, regarding arbitrary deductions from the sum the worker is entitled to; employers are not allowed to unilaterally change the terms of the contract unless the other contracting party agrees. However, due to the control imbalance, most are afraid to persist in challenging such deductions, when they are unfamiliar with the Singapore’s legal system, and the threat of being sent home without receiving any pay looms overhead.

Secondly, contract law does not satisfactorily provide a resolution to the problem of salary delays. While salary delays are a breach of the terms of a contract, these salary delays are not conditions, as the time of payment will not be deemed as a condition in common law20. As these delays are not deemed as a breach of a contractual condition, this does not entitle the worker to the common law right to termination of the contract – which might be the next best remedy available to the worker after a long period of salary delay. The right to terminate would allow the worker to cut his losses when the employer clearly has no money to pay or will not pay the worker his salary, which would render the common law right to damages or sue for contract price a hollow one.

Thirdly, while salary delays are not breaches of contractual conditions, the Employment Act21 does stipulate that salaries must be paid within seven days of the agreed date of payment22, and that over time pay must be paid within fourteen days of the last salary period23. Thus, the law allows a form of settlement for wage disputes via the Ministry of Manpower (“MOM”) caseworkers and the Labour Court. However, in practice, while MOM has succeeded in helping workers receive their unpaid salaries, in most cases, where the employers themselves are penniless, the workers are still unable to recoup their losses24.

Fourthly, these salary disputes may arise out of duplicate contracts and documents, where different terms are incorporated into legal documents, which purport to be the same. For instance, in their home countries, workers sign documents which may be in their own native tongue, but when they reach their destination country of Singapore, they sign the same document in English. While the terms profess to be the same, in reality, due to the language barrier, the workers are unable to do their due diligence to ensure the contractual terms are the same. Further, the control imbalance raises questions of the equality of bargaining power between the employers and migrant workers. Having already paid their agent fees and airfares, any legal recourse available in the doctrines of mistake, misrepresentation or duress, upon discovery of the differences in terms of contract in Singapore, would be too little, too late. The differences in equality of bargaining power further undermine the true nature of the freedom of the migrant worker to contract on his terms. While local workers may lack freedom to negotiate the terms of our contracts, the ability of locals to wait out legal claims and easily switch employers without being encumbered by work permits provides local workers with a very real means of enforcing the terms of their contracts in the event of breach.

In sum, these salary delays, non-payment of medical compensation for work accidents and deductions do plague a good number of the low-skilled and semi-skilled migrant workers in Singapore. The question then is what form of legal recourse does statute or the private law system afford them and to what extent are these effective in light of the control imbalance? The answer, while dismal, offers some hope. Practically speaking, the control imbalance and the very real threat of repatriation pose a high barrier to successfully enforcing and proving any legal claims that workers have. However, the sound theoretical legal doctrines bring hope in that there are legal avenues to tackle each problem, and bring optimism that slight systemic changes may be able to address problems posed by the control imbalance.

Policy should be two-pronged: aimed at both reducing the threat of repatriation, and easing the evidentiary burden on migrant workers. Regarding the former, the Singapore Court of Appeal has been open to employers footing the travel expenses of their workers when their workers return to Singapore to pursue their claim25. This brings hope that the threat of repatriation will be eased in time, where workers need not fear being repatriated because they can return to Singapore for their case to be heard even after their Special Passes or Work Permits expire, as their employers will be responsible for their expenses. Systemic changes in the form of allowing workers to pursue their claims from their home countries, rather than Singapore, would be helpful in reducing the legal sting of the threat of repatriation. Regarding the latter, compulsory issuance of pay slips26, and streamlining the statement-recording procedures for doctors, will help reduce the level of evidentiary burden placed on workers in trying to prove the validity of their claims.

Clearly, a balance between fairness and certainty must be struck both in theory and in practice. The day where sound theoretical checks against the abuse of control imbalances can be enforced in reality is one where perhaps, these silent builders will truly be legally empowered to defend themselves fully.

[1] Fann Sim, “Singapore bus driver strike makes world news”, Yahoo! News (30 November 2012), online: <http://sg.news.yahoo.com/singapore-bus-driver-strike-makes-world-news-104247497.html>.

[2] Teckwah Tan, “Singapore’s Maids: No Respite?”, The Diplomat (05 August 2013), online: <http://thediplomat.com/2013/08/singapores-maids-no-respite/>.

[3] Kirstan Han, “Singapore’s Exploited Immigrant Workers”, The Daily Beast (11 August 2013), online: <http://www.thedailybeast.com/articles/2013/11/08/singapore-s-exploited-immigrant-workers.html>.

[4]“Debts, Delays, Deductions: Wage Issues Faced by Foreign Domestic Workers in Singapore”, Transient Workers Count Too (24 May 2009), online: <http://twc2.org.sg/2009/05/24/debt-delays-deductions-wage-issues-faced-by-foreign-domestic-workers-in-singapore/>.

[5] Fann Sim, “Chinese Worker Rescued from Being Repatriated by Employer” YahooNews – Singapore Scene (21 December 2012), online: <http://news.yahoo.com/blogs/singaporescene/chinese-worker-rescued-being-repatriated-employer-024508057.html>.

[6] Sallie Yea, “Troubled Waters: Trafficking of Filipino Men into the Long Haul Fishing Industry through Singapore” (2012) at 56. Online: Transient Workers Count Too <http://twc2.org.sg/wp-content/uploads/2013/01/Troubled_waters_sallie_yea.pdf>.

[7] Ministry of Manpower, Work Permit (Foreign Worker) Cancellation and Renewal, online: MOM

<http://www.mom.gov.sg/foreign-manpower/passes-visas/work-permit-fw/cancelation-renewal/Pages/pass-cancellation.aspx>.

[8] Philip Lim, “Missing Migrant Workers Hunted Down in Singapore”, The Jakarta Globe (3 August 2011), online: <http://www.thejakartaglobe.com/archive/missing-migrant-workers-hunted-down-in-singapore/>.

[9]Repatriation Companies – Manpower Minister’s Response Belittles the Efforts of Migrant Workers, Jolovan Wham, (30 November 2011), online: <http://www.theonlinecitizen.com/2011/11/repartriation-companies-manpower-ministers-response-belittles-the-efforts-of-migrant-workers/>.

[10] Ibid.

[11] Ibid.

[12] Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed Sing).

[13] Chandran a/l Subbiah v Dockers Marine Pte Ltd [2010] 1 SLR 786; [2009] SGCA 58.

[14] Fiona Low, “More Workers in Singapore Falling to Their Deaths”, The Straits Times (4 November 2011), online: The Jakarta Post <http://www.thejakartapost.com/news/2011/11/04/more-workers-singapore-falling-their-deaths.html>.

[15] “Workplace Injuries, ill health ‘cost billions’”, TodayOnline (31 July 2013), online: <http://www.todayonline.com/singapore/workplace-injuries-ill-health-cost-billions>.

[16] Lim Wei Zhen, “Workers Told to Ignore Max Carrying Load Per Man Suffer Injury”, Transient Workers Count Too (19 August 2013), online: <http://twc2.org.sg/2013/08/19/workers-told-to-ignore-max-carrying-load-per-man-suffer-injury/>.

[17] Arjun Naidu, “Worker May Need Operation for Back Injury, Employer Wants to Send him Home”, Transient Workers Count Too (5 August 2012), online: <http://twc2.org.sg/2012/08/05/worker-may-need-operation-for-back-injury-employer-wants-to-send-him-home/>.

[18] (Cap 354, 2009 Rev Ed Sing).

[19] “Who Said What to the Doctor”, Transient Workers Count Too (6 December 2013), online: <http://twc2.org.sg/2013/12/06/who-said-what-to-the-doctor/>.

[20] Man Financial (S) Pte Ltd (formerly known as E D & F Man International (S) Pte Ltd) v Wong Bark Chuan David [2008] 1 SLR 663; [2007] SGCA 53.

[21] Employment Act (Cap 91, 2009 Rev Ed Sing).

[22] Ibid, s 21(1).

[23] Ibid, s 21(2).

[24] Andrew Loh, “Construction Workers in Yishun Demand Pay, Refuse to Work”, Yahoo (18 December 2012) online: <http://news.yahoo.com/blogs/singaporescene/construction-workers-yishun-demand-pay-refuse-063411977.html>.

[25] Selina Lum, “Insurer Rebuked for Wasting the Court’s Time”, Asiaone (30 November 2013), online: <http://news.asiaone.com/news/singapore/insurer-rebuked-wasting-courts-time>.

[26] Rachel Chang, Joanna Seow and Robin Chan, “Move for Compulsory Payslips Deferred”, Asiaone (15 November 2013), online: <http://business.asiaone.com/news/move-compulsory-payslips-deferred>.