Legal Points of Interest in Hong Kong: Past, Present, Future

Legal Points of Interest in Hong Kong:
Past, Present, Future

Meaghan Lim

Hong Kong has unique legal characteristics as both an ex-colony of Britain and a Special Administrative Region (SAR) in China. To provide background, first, a timeline.

TIMELINE¹

1842 – China cedes Hong Kong island to Britain. 1984 – Britain and China sign a Joint Declaration²on the conditions under which Hong Kong will revert to Chinese rule in 1997. 1990 – Beijing formally ratifies Hong Kong’s Basic Law³

1992 October – Proposals for the democratic reform of Hong Kong’s institutions aimed at broadening the voting base in elections are announced. China is outraged at not being consulted, threatens to tear up business contracts and overturn the reforms after it has taken control.

1997 July – Hong Kong is handed back to the Chinese authorities.

2004 April – China rules that its approval must be sought for any changes to Hong Kong’s election laws, giving Beijing the right to veto any moves towards more democracy, such as direct elections for the territory’s chief executive.

2004 July – Britain accuses China of interfering in Hong Kong’s constitutional reform process in a manner inconsistent with self-governance guarantees agreed before the handover.

2007 July – Hong Kong plans for full democracy unveiled.

2007 December – Beijing says it will allow the people of Hong Kong to directly elect their own leader in 2017 and their legislators by 2020.

2008 September – Hong Kong’s pro-democracy camp wins more than a third of seats in legislative elections, retaining a key veto over future bills.

2012 September – Pro-democracy parties retain their power of veto over new laws in Legislative Council elections.

PAST

There were two points at which China and Britain had disagreements regarding the administration of Hong Kong. In October 1992, China was angry about not being consulted regarding democratic reform in Hong Kong. In 2004, Britain accused China of interfering in Hong Kong’s constitutional reform process in a manner inconsistent with self-governance guarantees. As a principle in law, “the King cannot be sued in his own court”. Likewise in international law, a foreign sovereign cannot be sued in court⁴. This was extended to governments of States⁵.

The exception is where the foreign State voluntarily submits to the court, as said in Matsuyama & Sano v The Republic of China (1928)⁶:

“It is beyond doubt under international law that, in as much as no State acknowledges the authorities of another State except as an act of voluntary submission, a foreign State, in principle, is not amenable to our jurisdiction under some peculiar ground, such as the fact of the proceedings being in rem exists. There may be an exception only when such a State deliberately accepts our jurisdiction; and this may comprise occasions provided for by a treaty or those in which it has expressed its willingness to abide by the decision of our courts in the particular instance, or in contemplation of certain specific cases. Concession of that nature, however, must always and necessarily be made between the States concerned… It is true that the view that upon the institution of any litigation against a foreign State, it is still the duty of the Court… to issue a writ of summons and cite the parties to appear at an appointed date, so that an opportunity may be afforded to ascertaining the intention of the defendant (in this Case, the Republic of China), is a plausible one. It must nevertheless be pointed out that such issue of the note of citation ex officio … is in itself an exercise of our authority and cannot be effected against a State which does not submit to our jurisdiction.”

These principles of respect for sovereignty and non-interference with another’s domestic affairs are also reflected in C 1, art 2 of the UN Charter⁷, s 1⁸ and s 7⁹ respectively. China and Britain, as ratified members of the UN since 1945¹⁰, agreed with these principles before their issues with management of Hong Kong.

Ratification¹¹ of the Joint Declaration legally binds Britain and China to the terms set out in the Joint Declaration. However, as the declaration is without provisions subjecting China or Britain to the other’s jurisdiction, there is no enforceable method for Britain or China to enforce their legal declaration¹² except goodwill¹³.

There was the possibility of bringing the dispute to the International Court of Justice¹⁴. However, only contentious cases can be applied for unilaterally¹⁵. These mostly concern possible infringement of territorial or jurisdictional rights¹⁶, which would not be the case in either of the disagreements mentioned.

For disputes regarding interpretation of agreements, it is more likely that the States would submit an application for Advisory proceedings¹⁷. However, this type of application would require the consent and agreement of both States¹⁸. They are rare in comparison to Contentious cases¹⁹, indicating that China and Britain would not likely agree to such a method of dispute settlement.

CURRENTLY

General Principles²⁰ of the Basic Law

The HKSAR has a high degree of autonomy in executive, legislative and independent judicial power, including that of final adjudication²¹. The socialist system and policies shall not be practised in the HKSAR, and the previous system shall remain unchanged for 50 years²². The laws previously in force in Hong Kong (common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature of the HKSAR²³.

Relationship Between the Central Authority & the HKSAR²⁴

The Central People’s Government (“CPG”) is responsible for the defence and foreign affairs relating to the HKSAR. The CPG authorises the HKSAR to conduct relevant external affairs and maintain public order in the Region on its own²⁵. National laws are not applied in the HKSAR except for those listed in Annex III²⁶, which are applied locally by way of promulgation or legislation by the HKSAR²⁷. No body directly under the Central Government may interfere in the affairs which the HKSAR administers on its own in accordance with the Basic Law²⁸.

Possible Point of Tension

There appears to be tension between the Basic Law principle of non-interference²⁹ and its Annex I provision³⁰ that requires amendments to election laws to be approved by Beijing. They are not technically contradictory as Art 22 on non-interference has the qualifier “in accordance with this Law”, and Annex I amends the Basic Law. Art 45³¹ on elections also had a qualifier of “in accordance with the principle of gradual and orderly progress”. The tension has been tentatively resolved as Beijing has stated that it will allow the people of Hong Kong to directly elect their own leader in 2017 and their legislators by 2020, showing that the approval is merely for speed, placing it under the qualifier of “gradual progress”. However, until the election laws of Hong Kong reach a state that no longer requires change, Beijing repeals the requirement of approval or the Basic Law expires, this tension in spirit will still exist.

LEGAL FUTURE

In 2047, the 50 year hold-off of mainland policies under the Basic Law will end. It is possible that Hong Kong’s common law system would be replaced altogether by mainland China socialist-civil law. This would have the benefit of consistency. However, it also means that Hong Kong would lose part of its legal heritage and identity. Precedents under Hong Kong’s common law structure would no longer be binding. On the other hand, the legal arrangement could be allowed to continue, effectively extending the legal system arrangement that existed under Basic Law. This means that there will not be any major overhaul of the system currently in place, though without the Basic Law, China would be able to impose laws to be effected through the common law system.

Effects

Whatever the direction decided for Hong Kong, it is likely to affect Macau. Macau is under a similar agreement under the 1999 Sino-Portuguese joint declaration³². Their Basic Law³³ arrangement ends in 2049³⁴. Macau is somewhat different from Hong Kong as Portugal operates under civil law, which is more similar to China’s current legal system. There would be less change with the legal system itself. However, the general direction of completely replacing or extending their current legal system would be impacted from Hong Kong’s arrangement, as Macau is the only other SAR.

CONCLUSION

The disagreements concerning Hong Kong in the past illustrate principles in international law. The current “one country, two systems” shows slight tension in the spirit of the terms of the Basic Law, which can be resolved given enough time. When Hong Kong’s Basic Law agreement ends in 2047, the direction taken by China would be illuminating as well as important as the decision regarding Hong Kong may also affect Macau.

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[1] BBC, Hong Kong Profile, online: BBC news Asia-Pacific <http://www.bbc.co.uk/news/world-asia-pacific-16526765 on 13 Dec 2013>.

[2] The Joint Declaration sets out, among other things, the basic policies of the People’s Republic of China (PRC) regarding Hong Kong. Under the principle of “One Country, Two Systems”, the socialist system and policies shall not be practised in the Hong Kong Special Administrative Region (HKSAR) and Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years. The Joint Declaration provides that these basic policies shall be stipulated in a Basic Law of the HKSAR.

Basic Law Promotion Steering Committee, Some Facts about the Basic Law, online: The Basic Law

<http://www.basiclaw.gov.hk/en/facts/index.html>.

[3] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China [Basic Law].

The Basic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law, by providing that the laws previously in force in Hong Kong (that is, the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law, and subject to subsequent amendment by the HKSAR legislature.

Government of Hong Kong, Legal System in Hong Kong, online: Department of Justice <http://www.doj.gov.hk/eng/legal/>.

[4] Sompong Sucharitkul, “Jurisdictional Immunities in Contemporary International Law from Asian Perspectives” in Zou Keyuan & Jianfu Chen, eds, International Law in East Asia (England: Ashgate Publishing Limited, 2011) at 10.

[5] Ibid at 11.

[6] Judgement of December 1928, Great Court of Judicature, 7 Daihan Minchu, 1128 at 1135-1136; 4 Annual Digest of Public International Cases, 168 at 168-169.

[7] Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.

[8] Ibid, art II, s 1. The Organization is based on the principle of the sovereign equality of all its Members.

[9] Ibid, art II, s 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

[10] United Nations, Member States of the United Nations, online: United Nations Member States <http://www.un.org/en/members/>.

[11]Ratification legally binds a State to implement the Convention and/or Optional Protocol, subject to valid reservations, understandings and declarations.

United Nations, Chapter Four: Becoming a party to the Convention and the Optional Protocol, online: United Nations Enable <http://www.un.org/disabilities/default.asp?id=231>.

[12] Berkeley Journal of International Law , Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong with Annexes, 5 Int’l Tax & Bus Law, 424 (1987), online: Berkeley Journal of International Law <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1073&context=bjil>.

[13] Charter of the United Nations, supra note 7, Art II, s 2.

All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

United Nations, Chapter 1: Purposes and Principles, online: Charter of the United Nations <http://www.un.org/en/documents/charter/chapter1.shtml>.

[14] The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

International Court of Justice, The Court, online: International Court of Justice <http://www.icj-cij.org/court/index.php?p1=1>.

[15] International Court of Justice, Cases, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3>.

[16]International Court of Justice, List of Cases referred to the Court since 1946 by date of introduction, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3&p2=2>.

[17] Ibid.

[18] International Court of Justice, Cases, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3>.

[19] International Court of Justice, List of Cases referred to the Court since 1946 by date of introduction, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3&p2=2>.

[20] Basic Law Promotions Steering Committee, Chapter I: General Principles, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html>.

[21]Basic Law, supra note 3, art 2.

[22] Ibid, art 5.

[23] Ibid, art 8.

[24] Basic Law Promotions Steering Committee, Chapter II: Relationship between the Central Authorities and the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_2.html>.

[25] Basic Law, supra note 3, art 13-14.

[26] Basic Law Full Text—Annex III: National Laws to be Applied in the Hong Kong Special Administrative Region (Personally compiled. All effective from 1 July 1997 unless indicated otherwise with brackets.)

1. Resolution on the Capital, Calendar, National Anthem and National Flag of the People’s Republic of China

2. Resolution on the National Day of the People’s Republic of China

3. Declaration of the Government of the People’s Republic of China on the Territorial Sea

4. Nationality Law of the People’s Republic of China

5. Regulations of the People’s Republic of China Concerning Diplomatic Privileges and Immunities

vi.            Law of the People’s Republic of China on the National Flag;

vii.           Regulations of the People’s Republic of China concerning Consular Privileges and Immunities;

viii.          Law of the People’s Republic of China on the National Emblem;

ix.            Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone;

x.             Law of the People’s Republic of China on the Garrisoning of the Hong Kong Special Administrative Region. Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf [4 November 1998]

xi.            Law of the People’s Republic of China on Judicial Immunity from Compulsory Measures Concerning the Property of Foreign Central Banks [27 October 2005]

Note: The English translation is prepared by the Department of Justice, Government of the Hong Kong Special Administrative Region. It is for reference purposes and has no legislative effect.

Basic Law Promotions Steering Committee, Annex III: National Laws to be Applied in the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/annex_3.html>.

[27] Basic Law, supra note 3, art 18.

[28] Basic Law, supra note 3, art 22.

No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law. If there is a need for departments of the Central Government, or for provinces, autonomous regions, or municipalities directly under the Central Government to set up offices in the Hong Kong Special Administrative Region, they must obtain the consent of the government of the Region and the approval of the Central People’s Government. All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region.

*For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region. The Hong Kong Special Administrative Region may establish an office in Beijing.

Basic Law Promotions Steering Committee, Chapter II: Relationship between the Central Authorities and the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_2.html>.

[29]Ibid.

[30] Basic Law, supra note 3, annex I.7.

If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval.

Basic Law Promotions Steering Committee, Annex I: Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region, online: Basic Law Full Text <http://www.basiclaw.gov.hk/en/basiclawtext/annex_1.html>.

[31] Basic Law, supra note 3, art 45.

The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

The specific method for selecting the Chief Executive is prescribed in Annex I: “Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region”.

Basic Law Promotions Steering Committee, Chapter IV: Political Structure, online: Basic Law Full Text <http://www.basiclaw.gov.hk/en/basiclawtext/chapter_4.html>.

[32] “Decree of the President of the People’s Republic of China”, online: Basic Law Macau <http://www.umac.mo/basiclaw/english/main.html>.

[33] Basic Law of the Macao Special Administrative Region of the People’ s Republic of China.

[34]Ibid, Art 5.

Unclear stance on de minimis patent infringement and related legal conundrums in Organic Seed Growers & Trade Association et al. v Monsanto Company

Unclear stance on de minimis patent infringement and related legal conundrums in Organic Seed Growers & Trade Association et al. v Monsanto Company

Li Linzhe

Intellectual property rights including copyright, trademark usage and patent are actively enforced by large corporations; some may have enforced it too actively. Monsanto Co., the world’s leading multinational chemical and agricultural biotechnology corporation, has brought 144 infringement suits for unauthorized use of its seeds between 1997 and 2010. Approximately 700 other cases were settled without litigation, as noted in the case of Organic Seed Growers & Trade Association v Monsanto Co¹.

The case essentially involves a declaratory judgment action against 23 Monsanto patents covering transgenic seed products like corn, cotton, canola, sugar beets, soybeans and alfalfa. The plaintiff is a coalition of several dozen farmers, seed sellers and agricultural organizations². They seek a court order to estop Monsanto from initiating legal actions to enforce its patent rights against those caught by inadvertent infringements which allegedly occur inevitably whenever wind drifts carry pollens of recombinant plants to non-genetically modified fields.

In the United States, the rights conferred by the patent grant is, in the language of Title 35 of the United States Code³, “the right to exclude others from making, using, offering for sale, or selling” the patented invention in the United States or “importing” the patented invention into the United States. The right is a positive right of exclusion against infringers regardless of whether the infringer is intentional or inadvertent which, as it turns out, opens a host of problems when it comes to patent enforcement.

It is beneficial at this stage to set out the background of the law and the case. The power of the Congress to grant patents is derived from Article I, Section 8, Clause 8 of the U.S. Constitution, which allows the Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Patentable inventions are defined in sections 100-105 of Title 35 of the United States Code, which include inventions and discoveries of “any new and useful process, machines, manufacture, or composition of matter, or any new and useful improvement”⁴. Monsanto’s Roundup Ready® glyphosate-resistant seeds (which are designed to be used together with glyphosate herbicide, Roundup®) contain recombinant herbicide-resistant genes isolated from Agrobacterium strain CP4 (CP4 EPSPS), making it a “new and useful improvement” within the definition of patentable inventions.

Plaintiffs in this case, who refused to use Monsanto’s genetically-modified seeds, alleged that they had suffered substantial injuries because they were put at risk for inadvertent infringements of Monsanto’s patents. For fear of being sued, they were forced to forego planting even conventional (non-genetically modified) “corn, cotton, canola, sugar beets, soybeans and Alfalfa” due to the extent to which these crops were transgenic (the judge accepted the evidence that “over 85-90% of all soybeans, corn, cotton, sugar beets, and canola grown in the U.S. contains Monsanto’s patented genes”). They also suffered from increasing financial burdens by having to take costly precautions to avoid contamination, such as testing seeds for transgenic traits and creating “buffer” zones between their farms and those of neighbours growing modified crops. It is their counsel’s argument that only by eliminating any risk of being sued for inadvertent as well as uncontrollable infringements would they dare resume to grow conventional crops which are under threat of severe transgenic contamination.

Plaintiffs assisted by Benjamin N. Cardozo School of Law’s Public Patent Foundation (PubPat) lost their case. The judgment delivered on 10th June 2013 held that “taken together, Monsanto’s representations⁵ unequivocally disclaim any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling ‘trace amounts’ of genetically modified seeds”. The court also dismissed the action on the ground that Monsanto (through its representation) has disclaimed any intent to sue inadvertent users or sellers of seeds that are inadvertently contaminated with up to 1% of seeds carrying Monsanto’s patented traits. An express covenant not to sue as sought by the plaintiffs was also refused.

Federal Circuit considered the plaintiff’s argument that even though Monsanto has never threatened suit against them, in light of Monsanto’s evident history of aggressive assertion of its transgenic seed patents against other growers and sellers (144 suits and 700 settlements), they are entitled to assume that if they infringe those patents, they will also be sued—even if the infringement is inadvertent. However, the court held that this evidentiary history of aggressive patent enforcement alone did not suffice for declaratory judgment jurisdiction. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm”.

Further to the dismay of the coalition of farmers, the rule of de minimis non curat lex does not seem to offer any semblance of protection to fend off what many deem as harassing threats of litigation. Federal Circuit is reluctant to budge from its position in earlier precedents that “one who, within the meaning of the Patent Act, uses (replants) or sells even very small quantities of patented transgenic seeds without authorization may infringe any patents covering those seeds”, citing SmithKline Beecham Corp. v Apotex Corp. ⁶ and Abbott Labs. v Sandoz, Inc.⁷ In both cases, the court rejected the proposition that patent claims should be construed to avoid reading on “trace amounts” of a patented compound, even though that compound’s self-replicating properties might “place potential infringers in the untenable position of never knowing whether their product infringes because even a single undetectable [molecule would infringe (noting that de minimis infringement can still be infringement).

Hence, the practical effect of the decision is that intention does not constitute an element in patent infringement. Both intentional and inadvertent infringements are caught by the Act even though only “trace amounts” of patented materials were found in the fields of the farmers who refuse to use genetically-modified seeds. There is still a substantial risk that those farmers could be liable for infringement if they harvested and replanted or sold contaminated seed once the contaminated rate is beyond the threshold 1%. Taking the law to the extreme, merely permitting transgenic seeds inadvertently introduced into one’s land (by wind) to grow would constitute an infringing use if the threshold 1% is exceeded. Even though I tend to agree with Federal Circuit’s dismissal of plaintiff’s declaratory action on the ground that mere possibility of being sued does not suffice to allow them to claim damages caused by their own decisions to forebear from growing conventional crops with high transgenic content, I found the current legislation’s stance on “de minimis infringement” ambivalent and unsatisfactory. The 1% threshold is never expressly stated as a matter of law. As the court itself pointed out, United States Department of Agriculture has never established an upper limit on the amount of trace contamination that is permissible. It was the plaintiffs’ argument (which Monsanto did not contest and the Court refused to decide on the threshold) that “trace amounts” must mean approximately one percent (the level permitted under various seed and product certification standards).

Given that now intention no longer matters in a patent suit―inadvertent infringement is still an infringement―the law governing de minimis infringement should be all the more clearer. Farmers can no longer exert any control over possible contaminations caused by inevitable natural force. Moreover, given that no compensation is made to their increased expenditures on building “buffer zones” and testing for transgenic traits, it is only fair if the farmers can rely on a judicially fixed threshold below which they would be shielded from any threat of litigation, not as a private assurance between the parties, but as a policy across the board regarding patent issues involving transgenic crops.

It must not be overlooked that in reality, large corporations have a far stronger leverage against individual farmers and non-profit agricultural organisations not by threatening to sue but by threatening the mere prospect of litigation. As revealed in documentaries like Food Inc., it is an unannounced fact that Monsanto regularly sends private investigators to force inspections of farmers’ crops at ungodly hours and threatens them with the prospect of being sued, indirectly forcing many to switch to cultivate Monsanto’s genetically-modified seeds or to forego growing conventional crops altogether, even though they have been growing those crops on their acres for decades. Even in those settled cases, farmers are usually gravely prejudiced by corporations’ bargaining power. Not surprisingly, massive compensations for infringement apart, as a condition of the settlement, the farmers are banned from talking to the media about any of their encounters with the corporation including, invariably, the details regarding private investigations and threats.

As long as the law on “de minimis infringement” is foggy, Monsanto can and would continue its aggressive enforcement of its patents and its investigations which have put many on severe distress and others out of business. Emotional turmoil aside, those farmers’ livelihoods are at stake; either legislative or judicial protection must step up to give them redress.

Currently, the only silver lining of Organic Seed Growers & Trade Association v Monsanto Co. is that applicants can rely on a de facto judicial estoppel to fend off potential patent suits with contaminant level below 1%. As Federal Circuit points out in the obiter, while Monsanto’s representations are not an express covenant not to sue, they have a similar effect. Since the Court has relied on Monsanto’s representations to defeat the plaintiffs’ declaratory judgment claims, those representations are binding as a matter of judicial estoppel⁸.

Unfortunately, this protection is not available against de minimis infringements of other patents by other corporations if there is no prior action or similar representation by the corporation giving rise to judicial estoppel⁹. As a result, the chilling effect caused by the uncertainty of the law as well as its enforcement is likely to ensue.

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[1] 718 F.3d 1350, 107 U.S.P.Q.2d 1067

[2] Plaintiff organisations include, inter alia, Organic Crop Improvement Association International Inc., Beyond Pesticides, Navdanya International, Maine Organic Farmers and Gardeners Association, Northeast Organic Farming Association of New York, Northeast Organic Farming Association/Massachusetts Chapter, Inc.

[3] 35 U.S.C. s 154 (a)(1)

[4] 35 U.S.C. s 101

[5] A statement posted on Monsanto’s website reads: it has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in farmer’s fields as a result of inadvertent means.

[6] 403 F.3d 1331, 1336, 1339–40 (Fed. Cir. 2005)

[7] 566 F.3d 1282, 1299 (Fed. Cir. 2009)

[8] It is well established that a party who successfully argues one position is estopped from later adopting a contrary position in a case involving the same patent, see New Hampshire v Maine, 532 U.S.

[9] The main factors warranting judicial estoppel are [1] a party’s later position is “clearly inconsistent” with its prior position, [2] the party successfully persuaded a court to accept its prior position, and [3] the party “would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” (see New Hampshire v Maine, 532 U.S. at [750]–[751])

Open Justice and Secret Courts

Open Justice and Secret Courts

Victor Yao Lida

For some time now, the media has been awash with the story of Edward Snowden’s leakage of top secret National Security Agency (NSA) documents. While interest in Singapore has been muted on this issue, the same cannot be said for the Americans, British, French, German, even Brazilian citizens who are outraged by the fact that they have been spied on by their own governments, or their ostensible ‘allies’. At the heart of the massive interest generated by the Snowden revelations is necessarily the issue of privacy.

This article will examine a legal facet of that issue, by first looking at the secret courts which have been instituted in the United States and the United Kingdom in the context of Open Justice. These institutions arguably represent a movement against Open Justice. This article then moves to examine a contrasting shift in the tide in China, where the Communist Party government was unusually open and public in the trial of Bo Xilai.

What is Open Justice, and why is it important?

“[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Hewart CJ in R v Sussex Justices, ex p McCarthy (1924).

Open justice is the legal rule which requires courts and other bodies which discharge functions of a judicial nature to conduct their proceedings in public.¹ It is one of the key tenets of the rule of law, and applies to both criminal and civil trials. It is usually regarded as being of higher importance to the former however, and therefore finds explicit expression in such crucial legal documents as the U.S. Constitution (Sixth Amendment), the European Convention on Human Rights (Article 6), the Canadian Charter of Rights and Freedoms (Section 11). Notably, there is no mention of such a requirement in the Singapore Constitution- the closest would probably be Sections 230 and 233 of the Criminal Procedure Code.²

Three main arguments have been made in support of the concept of Open Justice.

Firstly, the key value of open justice is intimately associated with the concept of the fair trial. As Lord Neuberger, President of the UK Supreme Court noted in his judgment in Bank Mellat v Her Majesty’s Treasury (2013)³, “Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing.”⁴ Secondly, there is the disciplinary rationale of open justice- ‘that the community should be able to see that the law is being properly applied and administered.’⁵ Underpinning this rationale is the need to ensure that judgments are given fairly and without bias by judges.

Thirdly, there is also the deterrent function of open justice, where the conviction and harsh sentencing of criminals are made publicly known, thereby deterring would-be criminals from acting illegally.

America: the foreign intelligence surveillance court

The United States has long had a mechanism for ensuring a judicial check on the investigative powers of the executive branch. In 1978, Congress passed the Foreign Intelligence Surveillance Act, which governs and restricts the executive’s ability to conduct surveillance in both the domestic and international spheres. Keen to protect the American citizen’s right to privacy, Congress also created the Foreign Intelligence Surveillance Court (FISC), a special court with a mandate to review applications for warrants related to national security investigations.

Proceedings before the FISC are ex parte and non-adversarial, where the presiding judge will only receive submissions from the government due to the sensitive nature of the material.

United Kingdom: Justice and Security Act

The United Kingdom has taken a similar turn towards secret courts, with the Justice and Security Act just passed in April this year. While the UK has not created a separate court, what the Act essentially does is to extend the scope of “closed material procedures.” Under these procedures, the government can request that the court move into secret session, such that its submissions would only be reviewed by the presiding judge and other security-cleared personnel.

Similarly to the American approach, the other party – if there is one – will not have any right to examine the government’s submissions.

Is there (Open) Justice?

Both the US and UK approaches seem to go against the notion of open justice, since the only arguments the judge will hear are those of the executive, whose very presence at the court suggests that they wish to create further incursions into the privacy of the unknown, unrepresented individual. There will thus be a tendency towards bias by favouring the state, as against the individual.

Pitted against the arguments for openness however are the valid concerns of national security. National security demands that sensitive material not be exposed to the public eye, lest their revelation endangers the safety of intelligence personnel, or compromises the ability of the state to protect the greater welfare its citizens.

It seems commonsensical that in such a situation courts will have to strike a balance between upholding the rights of the individual, and state’s interest in protecting national security. Yet, the actual practice of the courts thus far seems to be somewhat beyond the pale.

At the time of writing, the FISC has been found to have approved an NSA request to intercept millions of telephone metadata, the timing and location information about whom someone dials, texts, or email. Moreover, there is now widespread concern that such approval has been rather purposeless- as even Senators Ron Wyden and Mark Udall note that “intelligence agencies made statements to both Congress and the [FISA court] that significantly exaggerated this program’s effectiveness.”⁶

Across the pond, the UK judiciary itself has been noticeably reluctant to embrace the new Justice and Security Act. This was made evident in the UK Supreme Court judgment in Bank Mellat, where Lord Neuberger, President of the Court wrote “any judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed material procedure, whenever it is mooted and however understandable the reasons it is proposed, with distaste and concern.”⁷ Lord Hope, deputy president of the court, was even more vociferous, declaring that, “Secret justice at this level is really not justice at all.”⁸

Indeed, in view of the fact that there is no written constitution in the UK, and correspondingly that Parliament is supreme, the judiciary has had no choice but to accede to the requirements laid down in the Justice and Security Act. Consequently, they seem to have taken to the court of public opinion. Lord Neuberger has publicly gone so far as to say that “the campaigns for improving open justice in the courts are to be applauded.”⁹

China: A remarkable openness

China witnessed one of its most sensational trials in decades earlier this year, with the trial former Politburo member Bo Xilai on charges of corruption. The severe sentence meted out, life imprisonment, was of significant interest to the general Chinese public as it illustrated the new Chinese government’s commitment to rooting out corruption. Yet what was arguably more significant was the manner in which the trial itself was carried out.

Most spectators had expected the trial to be a carefully scripted ‘show trial’, ending with the inevitable conviction. Many were instead surprised by the remarkable openness shown by the Chinese government, as the proceedings of the trial were instead updated on a live stream on Weibo- the Chinese equivalent of Twitter- set up by the Jinan Intermediate People’s Court itself.¹⁰

While it may be argued that within the trial itself the verdict was inevitable, the fact remains that China has taken a huge step in the direction of openness here. The harsh sentence itself satisfies the deterrent function of open justice, but the open nature of the proceedings itself validates the disciplinary rationale of open justice as cited above. By allowing the public access to what was actually said in court, the government has decisively moved to inspire greater faith in the integrity and fairness of its judicial system.

Whither Open Justice Now?

The courts have traditionally been seen as the final bastion in the protection of the individual’s rights, serving as the definitive check on the executive’s exercise of power. However, trends in both the U.S. and the U.K. point to an undermining of the court’s independence, and serve to provoke questions to whether the courts are still in the best position to adjudicate over the executive’s actions, especially where they do not receive the benefit of opposing arguments. As public interest grows on this issue, perhaps the trend against openness will be reversed. In contrast, China’s steps towards openness are to be applauded as a step in the right direction. It can only be hoped, though, that these tentative steps will eventually become a full-fledged embrace of open justice, such that public faith in the judicial process becomes entrenched.

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[1] Jaconelli, Joseph. Open Justice: A Critique of the Public Trial (Oxford University Press, 2002) at 1.

[2] (Cap 68, 2012 Rev Ed Sing)

[3] Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38 [Mellat]

[4] Mellat, supra note 3 at [3].

[5] R.A. Duff, Trial and Punishments (Cambridge University Press, 1986) at 147-8.

[6] U.S. Senate, Press Release, “Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection Program” (02 July 2013) online: <http://www.wyden.senate.gov/news/press-releases/wyden-udall-statement-on-the-disclosure-of-bulk-email-records-collection-program>

[7] Mellat, supra note 3 at [51].

[8] Mellat, supra note 3 at [98].

[9] David Barrett, “Openness a ‘fundamental principle’ of justice, says Britain’s most senior judge” online: The Telegraph <http://www.telegraph.co.uk/news/uknews/law-and-order/10351250/Openness-a-fundamental-principle-of-justice-says-Britains-most-senior-judge.html>

[10] Qiang Zhang, “Microblogging the Bo Xilai trial: Transparency or theatre?” online: BBC <http://www.bbc.co.uk/news/world-asia-china-23806657>

ASEAN: In a Daze Over the Haze?

ASEAN: In a Daze Over the Haze?

Ryan Nicholas Hong

The countries of Singapore, Malaysia and Thailand experienced one of the worst transboundary haze pollution crisis in June 2013, with the Pollutant Standards Index in Singapore reaching a record of 401, and Malaysia declaring a state of emergency in some areas. This annual “haze season” has indeed plagued the region for decades, prompting calls for regional unity in the face of this perennial problem. The protracted nature of the issue can be attributed to it being multifaceted; involving many different stakeholders who have conflicting interests and influence. This essay will thus examine the complex interplay of regional and local forces, with a special emphasis on the Association of Southeast Asian Nations (ASEAN), and the way forward in forging a stronger regional architecture.

The Blame Game Ensues: J’accuse!

The haze crisis resulted in severe losses to the economies of the aforementioned Southeast Asian countries, with tourism and productivity suffering the most. Its aftermath also saw the usual finger pointing, with many of them pointing at the Indonesian government. Much ink has been spilled over the lack of political will on the part of the Indonesian government. After all, domestic laws have existed for some time: any individual found guilty of starting a forest fire can face a jail term of up to 10 years, and fines of up to 10 billion rupiah. Firms found guilty of the offence can also have their profits seized, operations shut down, and be sued for damages.¹ Yet, enforcement of laws remains difficult. According to a Riau Provincial Police spokesman, most fires are started at night in remote locations, making it difficult for the culprits to be tracked down.² Rampant corruption also remains a big issue in Indonesia, with “rent-seeking local leaders and corporations taking advantage of lax law enforcement and murky regulations to continue clearing forests at an increasingly rapid rate”.³

However, what stoked tempers more was Indonesia’s response and reactions to the crisis. Many felt that the response by the Indonesian government was far too slow, and the magnitude of the response, too small. Cloud-seeding operations (with two aircraft) only commenced when the haze reached critical levels in the countries of Singapore and Malaysia, and only three helicopters were used to put out the fires on hundreds of hectares of peatland.

Even more troubling was the reactions of some in the Indonesian government. While the government purported to shift some of the blame on Malaysian and Singapore-based palm oil companies, the minister coordinating Jakarta’s response to the crisis, Agung Laksono, accused Singapore of acting “like children” in a tizzy. Indonesian Foreign Minister Marty Natalegawa also remarked that Indonesia would not apologise for the haze.

It should however, be heartening to note that the Indonesian Government has taken, and continues to take action. In October 2013, the Riau police charged 29 people, including plantation owners and field workers, for their alleged role in starting forest fires. One company that was thought to be a possible culprit behind the fire is PT Adei Plantation and Industry. According to a Wall Street Journal Report, investigations are currently ongoing, with senior employees of Adei Plantation, including one Danesuwaran K. Singham, and one Tan Kei Yoong currently assisting with the investigations.⁴

Ultimately, it still remains to be seen if the government will impose harsh penalties on any persons convicted, to ensure deterrence. The government must also resolve to stamp out corruption if it wants to ensure compliance with and enforcement of the law. Yet, this may be a simplification of a complex issue. Burning of peatland remains the cheapest and fastest way to clear large swathes of land, and farmers are used to this system. Unless a viable alternative is proposed, the problem is likely to remain persistent.

Other Actors

Given the difficulties faced by the Indonesian government, what then can other countries and the international community do?

Firstly, governments could ban the import of products by companies responsible for the fires. However, this is not an easy solution given the difficulties in identifying the culprits behind the fires, especially since investigations are still ongoing (as aforementioned), months after the crisis. Further, such actions may well affect bilateral ties and trade relations between countries.

A second alternative is a boycott by an active citizenry of the same products. However, this is not a viable solution given that not all consumers make environmentally-conscious choices when it comes to their shopping. There is also no guarantee that such a boycott would be effective, if it is even initiated in the first place, given that there would always be a segment of the population that would be apathetic to such a cause (think pragmatic Singaporeans). Palm oil, from the plantations in Indonesia, is also seemingly ubiquitous, and can be found in many products that we use daily, such as toothpaste, shaving cream, soaps, and it is even used as an ingredient in foods. The geopolitical realities of Southeast Asia must also be considered. Can a boycott in our tiny red dot affect the large and powerful behemoth that is Indonesia?

A third recourse is to be found in International Law. As Professors Tommy Koh and Michael Ewing-Chow note, international law allows for extraterritorial jurisdiction if the actions affect the state asserting such a jurisdiction. With such laws, governments can prosecute the culprits for activities carried outside their territory.⁵ Yet, once again, this proves tricky if the culprits cannot be identified in the first place.

Lastly, cooperation is required from industry and corporations. A good example is Sime Darby, which gave the Indonesian government permission to re-take its fire prone lands to prevent wildfires, and also gave an assurance that it would educate farmers on their land about the dangers of open burning⁶. More work has to be done towards making sustainable farming the new norm. This will eradicate slash-and-burn techniques.

The ASEAN Way

Given the challenges faced by the Indonesian government and a lack of viable options through international law, perhaps we can look to ASEAN for a solution. The ASEAN summit in Brunei saw the adoption of the joint haze monitoring system, marking a small, but important milestone in anti-haze efforts. The system will employ high-resolution satellite images together with land use and concession maps to identify the culprits behind future forest fires. This unprecedented move, garnering the backing of all 10 ASEAN leaders, underscores the cooperation and resolve by the regional group in tackling this problem. Singapore’s Prime Minister Lee Hsien Loong also welcomed the move as a “concrete example of cooperation”⁷. However, problems remain. While Singapore had pushed for official land use and concession maps that show where companies are allowed to conduct their economic activities, to be made publicly available, Indonesia and Malaysia registered their disapproval, citing legal concerns.

Although ASEAN has long been noted for the so-called “Asean Way”, which prioritises consensus over conflict, perhaps ASEAN is not quite the paper tiger it is so often made out to be. As much as ASEAN is powerless as long as Indonesia does not ratify the 2002 Asean Agreement on Transboundary Haze Pollution (and indeed, powerless even if Indonesia does ratify the agreement⁸), it should be noted that the five environment ministers of Singapore, Malaysia, Indonesia, Brunei, and Thailand did reach a compromise that the maps be shared on a case-by-case basis between governments. Indonesia’s Presidential advisor on climate change Agus Purnomo has also come out in support of the release of maps that show the burnt areas.

In the aftermath of the crisis, leaders from the affected countries, including Singapore’s Environment Minister Vivian Balakrishnan made numerous trips to Indonesia, placing pressure on the Indonesian government. It is submitted that ASEAN is highly relevant as a forum for small countries like Singapore, especially in light of the geopolitical realities of Southeast Asia, where Indonesia has the largest economy. As Singapore’s Law Minister K Shanmugam noted, “ASEAN and international organisations prove useful and important platforms for issues to be raised and countries have to then account for their actions. That by itself has had, in the past, impact on the conduct of countries”⁹.

Conclusion

It has now been about half a year since the region’s worst air pollution crisis in 16 years. The embers are long gone, and the smog has subsided. But let us not forget that the problem remains perennial (and an annual issue), and addressing it would require the concerted efforts of industry, government, and citizenry.

Southeast Asian regionalism may well be a driving force for change and it shall be interesting to observe the evolving role that ASEAN will play in the near future, especially with the ASEAN Economic Community due in 2015. By then, Indonesia ought to have ratified the Asean Agreement on Transboundary Haze Pollution if the undertaking by its Environment Minister is followed through. Indonesia constitutes about 40 per cent of the ASEAN economy¹⁰ and it shall have to demonstrate more resolve and sincerity in dealing with the haze problem if it wants to assume a leadership role in Southeast Asia.

Singapore’s national broadsheet pessimistically noted that we, like others in the region, ought to learn to be better prepared when the haze inevitably returns again.¹¹ Hopefully, there can be a day when that statement shall no longer hold water.

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[1] “Two Malaysian plantation managers in haze probe, banned from leaving Indonesia” online: MSN Malaysia <http://news.malaysia.msn.com/malaysia-news/two-malaysian-plantation-managers-in-haze-probe-banned-from-leaving-indonesia-1>

[2] Arlina Arshad, “Indonesia begins cloud-seeding to fight haze” online: Yahoo News <http://sg.news.yahoo.com/indonesia-begins-cloud-seeding-fight-haze-051337093.html>

[3] Sara Schonhardt, “How corruption is fuelling the haze”, The Straits Times (25 June 2013) online: The Straits Times <http://www.straitstimes.com/the-big-story/asia-report/opinion/story/how-corruption-fuelling-the-haze-20130625>

[4] Supra note 1

[5] Tommy Koh and Michael Ewing-Chow, “The transboundary haze and the international law”, The Jakarta Post, (27 June 2013) online: http://lkyspp.nus.edu.sg/ips/wp-content/uploads/sites/2/2013/07/pa_TK_Jakarta-Post_The-transboundary-haze-and-the-international-law_270613.pdf>

[6] Supra note 1.

[7] S Ramesh, “PM Lee welcomes adoption of ASEAN haze monitoring system”, online: Channel News Asia <http://www.channelnewsasia.com/news/asiapacific/pm-lee-welcomes-adoption/841538.html>

[8] See Koh Kheng Lian, “A Breakthrough in Solving the Indonesian Haze”, online: http://data.iucn.org/dbtw-wpd/html/EPLP-072/section12.html

[9]Ministry of Foreign Affairs, Press Release, “Transcript Of Minister For Foreign Affairs And Minister For Law K Shanmugam’s Press Conference On The Haze Issue” ( 22 June 2013) online: <http://www.mfa.gov.sg/content/mfa/media_centre/press_room/pr/2013/201306/mfa-press-release–transcript-of-minister-for-foreign-affairs-an.html>

[10]“Indonesia will be strong in ASEAN Economic Community 2015”, The Jakarta Post (08 September 2013) online: Asia News Network <http://news.asiaone.com/news/asia/indonesia-will-be-strong-asean-economic-community-2015>

[11] Joyce Lim, “For Riau’s farmers, livelihood trumps haze”, The Straits Times (30 June 2013) online: The Straits Times <http://www.straitstimes.com/the-big-story/asia-report/indonesia/story/riaus-farmers-livelihood-trumps-haze-20130630>

Case Commentary: Sembcorp Marine

Case Commentary: Sembcorp Marine

Victor Leong

Introduction

The Singapore Court of Appeal in Sembcorp Marine¹ has recently clarified the law as regards, inter alia, the implication of terms in fact. This article will examine three aspects of the court’s decision regarding the implication of terms: the basis of ‘necessity’, the complementary approach towards the common law tests, and the practical framework which the court has chosen to adopt.

It is this author’s view that the court in Sembcorp has laudably confirmed the basis of necessity and clarified the conjunctive nature of the common law tests as applied in Singapore. However, the court unfortunately chose to import the vague concepts of foreseeability and normative bases other than business efficacy into the picture. Finally, the court should have taken the opportunity to clarify the exact scope of application of the common law tests in Singapore – especially what exactly constitutes business ‘efficacy’.

The basis of necessity

The prevailing approach in Singapore towards the implication of terms in fact is a basis of necessity. Although this seems to have been established law², there was some confusion in the common law recently, given Lord Hoffmann’s seminal decision in Belize³. In the Belize decision, Lord Hoffmann put forth an approach based on the ‘interpretation’ of the contract as a whole – ostensibly a basis of reasonableness. The Court of Appeal in Sembcorp conclusively rejected the Belize test to the extent that it purports to impose this standard of reasonableness to implied terms⁴, following previous decisions in Foo Jong Peng⁵ and MFM Restaurants⁶.

This unequivocal clarification is welcome for law students such as this author for two reasons. First, it reaffirms the Singapore courts’ commitment towards giving effect to parties’ intentions as much as possible. Implying terms into a contract is to give effect to parties presumed intentions, ie, what they must have meant when drafting the contract⁷. This is as opposed to implying the reasonable rights that the courts would like them to have – even if parties may have meant for a slightly imbalanced bargain to reflect other considerations.

Second, this accords with other areas in contract law. As mentioned, the Singapore courts’ attitude of giving effect to parties’ intentions whenever possible is also currently reflected in other areas of contract law. For instance, in the absence of express stipulation or contextual evidence that parties meant for a term to be a condition, the court will not easily find that the effect of a breach is so severe as to ‘substantially deprive’ the aggrieved party of the benefits of the contract⁸. This gives effect to the severity that the parties intended (or did not intend) to accord the particular term, rather than the court imposing its own standard by looking at the effect of the breach.

However, a possible problem is that the distinction between what is necessary and what is reasonable is not always clear. For instance, the House of Lords in Liverpool⁹ purported to apply the standard of necessity to implying terms in law. Accordingly, the term eventually implied was that the landlord would keep the common areas clean and would maintain the lift, among others. However, it is unclear how exactly this is necessary rather than merely reasonable. The occupation of premises in that case would still have been perfectly usable even without the common areas being clean, even though it would have been an annoyance. Similarly, the lift being out of order would have served as an inconvenience for the occupiers, although they could still climb the stairs. Arguably, such annoyances or inconveniences, while reasonable for the landlord to fix, is not entirely necessary for the operation of the contract.

It is thus necessary to analyze the common law tests which were developed to manage this problem (in the area of implied terms in fact), and how they apply in Singapore.

The complementary approach towards the common law tests

The common law has developed two tests to give effect to the basis of necessity. The business efficacy test posits that a term should only be implied if to do so would be the only way to achieve ‘business efficacy’ in a contract. Thus, in The Moorcock¹⁰, the court concluded that the only way that a contract to use a wharf could be given business effect was to imply a term in the contract that the wharf would be safe. On the other hand, the court in Shirlaw¹¹ employed the legal fiction of the ‘officious bystander’ to decide whether to imply a term. The term would only be implied if, had the term been suggested by the officious bystander, the parties to the contract would deem it so obvious as to silence him with the obligatory, ‘oh of course!’.

Accordingly, the prevailing approach in Singapore is a complementary approach to these two existing tests¹². Under the complementary approach, the officious bystander test is the practical application of the business efficacy test, which provides the theoretical basis. Taking the complementary approach to its logical end, the two tests must then be two sides of the same coin and must necessarily give rise to the same result whenever applied.

However, the Court of Appeal in Sembcorp finessed the complementary approach by preferring to see the two tests conjunctively rather than as two sides of the same coin¹³. According to the court, the business efficacy test posits that the current state of the contract is lacking because in this current state, it would not achieve business efficacy. However, this test by itself does not inform the court as to exactly which term should be implied¹⁴. This is where the so-called officious bystander comes in as a test as to whether a precise term should be implied¹⁵. Thus, the two tests are not only complementary insofar as one is the practical application of the other. Rather, they are two different steps in one approach¹⁶.

This clarification is helpful for three reasons. First, it provides a cogent explanation of why the complementary approach should be taken as opposed to an alternative approach¹⁷, which the court has previously rejected¹⁸. Under the alternative approach, either test would be sufficient to indicate that implying a term is necessary. The existence of two tests rather than its amalgamation into one is because the tests may be better suited for different contexts. However, as has just been explained, it is clear that the two tests serve different purposes under the same umbrella of necessity.

Second, the previous interpretation of the complementary approach is not convincing. It is entirely possible that only one of the two tests is satisfied. For instance, it is arguable that even in The Moorcock¹⁹, the paradigm case of business efficacy, the officious bystander would not have been silenced in the required manner. The safety of the wharf would not have been such an obvious term to imply into the contract – rather, in the commercial context, such a term should instead be negotiated for by the parties. Arguably, a term which would have prompted the requisite reply from the contracting parties would be one far more obvious – such as the existence of the wharf in the first place. The court in previous cases did not explain how this could be the case if the officious bystander test is identical in substance to the business efficacy test, with the only difference being that the latter is the theoretical underpinning of the former. Thus, the current interpretation of the complementary approach is a much more convincing one.

Third, the court also held that business efficacy is not the only normative standard possible²⁰. The test of business efficacy is only suitable insofar as the contract is meant for businesses in the first place, ie, in commercial contexts. The different attitudes towards different contexts mirrors Singapore’s current approach in other areas of contract law. For instance, the contextual approach towards the interpretation of terms posits that different contracts have different starting points²¹. Thus, the court would be slower to admit extrinsic evidence in commercial contracts because parties would be presumed to have had independent legal advice and bargained the terms they considered necessary into the four corners of the contract. Applying the same principle in the context of implying terms is satisfactory – it represents a principled approach²² which applies to any stage of the construction process²³.

On the other hand, two problems also arise with the court’s decision in Sembcorp.

First, although adopting different normative standards for different contracts is appealing in theory, but it is unclear why other normative standards should exist in the first place. By first principles, the court will only look into implying a term into a contract should a valid contract be found in the first place. A contract lacking in ‘efficacy’ in any context other than a business context should already have failed at the formation stage. This is because a contract lacking in such efficacy would be uncertain in itself²⁴. In a commercial context, it is still arguable that the lack of certainty should not matter so much because, for instance, it is commercial practice to begin part performance before the actual determination of certain terms. However, this is not the case in non-commercial contexts. The presumption that parties intend to create legal relations where they do not deal at arm’s length is much weaker²⁵. Thus, the court should not even need to apply other normative standards because these contracts could not have passed to the stage where implication of terms is necessary. Accordingly, the business efficacy standard should be the only available standard.

Second, it is not entirely clear what exactly the court means by business ‘efficacy’. This problem was explicitly acknowledged by the court in Sembcorp²⁶. Although business efficacy is the standard, it is unclear what degree of efficacy the court strives to achieve. Arguably it should be the minimum efficacy because any higher would betray the basis of necessity, instead importing a standard of reasonableness. But even if the court were to give effect to the minimum efficacy necessary, it is unclear what this minimum level entails²⁷. In fact, it is arguable that given that parties are already performing the contract, it is a pointer that a minimum level of efficacy has already been achieved.

The practical framework in Sembcorp

Finally, the court in Sembcorp laid down a practical framework as to when the common law tests should even be engaged in the first place. Under this framework, the common law tests would only be applied to the factual situation if the gap in the contract arises in a manner which the court deems that it might imply a term²⁸.

To illustrate this, the court provided three situations, although they are non-exhaustive: (a) parties did not contemplate the issue and so left a gap; (b) parties contemplated by chose not to provide because they mistakenly thought express terms provided; (c) parties contemplated but chose not to provide because they could not agree on solution. It is only in the first situation where the court is able to imply a term to fill that gap. The second situation is more amenable to rectification, and the third is a gap which the court should not fill – a function of negotiation that parties were unable to come to a solution²⁹.

Three problems arise with this framework.

The first problem is that the court did not spell out exactly what it is about situation (a) which allows the court to imply the term. This is important because the court itself recognized that these are just three possible situations and that the categories are not closed³⁰. Thus, should a fourth situation appear in future cases, it would be wise for the court to lay down some sort of underlying principle to classify this new situation. Examining the 3 different situations, therefore, it seems that the crucial quality of situation (a) is that parties did not contemplate the issue. However, it is unclear if the crux is that both parties did not contemplate the issue or if one of the parties did not contemplate the issue. Ostensibly it should relate to a situation where both parties did not contemplate. Only in such a situation would the court not be interfering with freedom of contract in implying a term. Thus, this could be applied to a possible fourth situation where only one of the contracting parties had contemplated the term. Adopting the probable reasoning underlying this approach, this fourth situation would probably not be allowed because it did not fall outside the contemplation of both parties; thus, the court would be interfering with freedom of contract in implying a term.

The second problem is that the amorphous concept of ‘foreseeability’ has arguably been introduced by this framework. Looking at what the parties have ‘contemplated’ is in essence a question of foreseeability, which is a slippery term incapable of being defined. As seen in the context of frustration, whether one concludes that foreseeability of a future event ipso facto precludes it from being a frustrating event depends on one’s definition of ‘foreseeability’ in the first place³¹. Should foreseeability merely mean a ‘possibility’, this would make the test for frustration – and consequently situation (a) in Sembcorp – an inordinately high one to fulfil. Indeed the Singapore position regarding this matter seems to be that foreseeability is inconclusive³². Thus, it is probably unwise that such a problematic concept is seemingly re-introduced in implied terms. Indeed, the Singapore courts seem to have had problems applying even the same test of foreseeability. For instance, even the low threshold of ‘factual foreseeability’ in the tort of negligence³³ was later re-applied, arguably erroneously, as the much higher threshold of ‘reasonable foreseeability³⁴.

The third problem is that it is difficult to identify which ‘situation’ any given case falls into in the first place. The contemplation of the parties is evinced by first, the express terms, and second, extrinsic evidence. Requiring extrinsic evidence to be admitted to conclude which situation a case falls into would arguably be too onerous – especially since the law in that area is itself unsettled. The Court of Appeal in Sembcorp itself left it open as to whether prior negotiations are admissible as extrinsic evidence³⁵. Whether such an issue was within parties’ contemplation is ostensibly from this very source of evidence.

Conclusion

Overall, the current Singapore position is as follows: First, identify how a gap in the contract arises. Only where both parties did not contemplate the gap should a term be implied. Second, where there is a gap to be filled, the court will only imply a term where necessary to give business efficacy, although other normative bases are in theory also allowed. Finally, the court will employ the fiction of the officious bystander to determine exactly which term should be implied.

Implying a term into a contract is always tricky business because it is the court’s search for what they presume to be parties’ intentions. Thus, strict guidelines must be put into place. To that end, the clarification of the conjunctive nature of the business efficacy and officious bystander tests is welcome. However, it is this author’s view that this court should clarify the application of the amorphous concepts of foreseeability and efficacy in future cases.

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[1] Sembcorp Marine v PPL Holdings Pte Ltd and another and another appeal, [2013] 4 SLR 193, [2013] SGCA 43 [“Sembcorp”].

[2] See generally, Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927; Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd, [2006] 4 SLR (R) 571.

[3] AG of Belize v Belize Telecom Ltd, [2009] 1 WLF 1988.

[4] Sembcorp at [77], [82].

[5] Foo Jong Peng v Phua Kiah Mai, [2012] 4 SLR 1267 at [31], [36].

[6] MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd, [2011] 1 SLR 150.

[7] Sembcorp at [29], see also generally Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927 [“Forefront”].

[8] See generally, Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, [1962] 2 QB 26; RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal, [2007] 4 SLR (R) 413, [2007] SGCA 39.

[9] Liverpool City Council v Irwin, [1977] AC 239.

[10] The Moorcock, (1889) 14 PD 64.

[11] Shirlaw v Southern Foundries (1926) Ltd, [1939] 2 KB 206.

[12] Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927 at [35].

[13] Sembcorp at [98].

[14] Sembcorp at [90].

[15] Sembcorp at [91].

[16] Sembcorp at [101].

[17] Loh Siok Wah v American International Assurance Co Ltd, [1998] 2 SLR (R) 245.

[18] Forefront at [35].

[19] Supra note 10.

[20] Sembcorp at [85].

[21] Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd, [2008] 3 SLR (R) 1029, [2008] SGCA 27 [“Zurich Insurance”] at [110].

[22] See for e.g., Zurich Insurance at [132].

[23] Sembcorp at [31], referring to the composite process of ascertaining parties’ true intentions.

[24] See generally, Sudbrook Trading Estate Ltd v Eggleton, [1983] 1 AC 444; Tan Yeow Khoon v Tan Yeow Tat, [1998] 2 SLR (R) 19.

[25] See for e.g., Balfour v Balfour, [1919] 2 KB 571.

[26] Sembcorp at [86].

[27] Sembcorp at [87].

[28] Sembcorp at [94].

[29] Sembcorp at [95]-[96].

[30] Sembcorp at [94], referring to “at least” 3 situations.

[31] See generally, Ocean Tramp Tankers Corporation v V/O Soufracht (The “Eugenia”), [1964] 2 QB 226; Walton Harvey v Walker and Homfrays, [1931] 1 Ch 274.

[32] Lim Kim Som v Sheriffa Taibah bte Abdul Rahman, [1994] 1 SLR 393.

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

[34] See for e.g., Animal Concerns Research & Education Society v Tan Boon Kwee, [2011] 2 SLR 146, [2011] SGCA 2 at [106].

[35] Sembcorp at [75], after considering Chartbrook Ltd v Persimmon Homes Ltd, [2009] 1 AC 1101.

Assisted dying in Singapore—Should we suffer in silence?

Assisted Dying in Singapore — Should We Suffer in Silence?

Tian Kuang Kai

Assisted dying includes euthanasia and assisted suicide. The two are distinguished by who actually causes death – who commits the actus reus, if you will. Neither is legal in Singapore by virtue of the Penal Code¹ Attempted suicide is an offence pursuant to s309, and read together with s107, abetment of an attempted suicide is also an offence. The question is whether or not this should be the case, and this article seeks to explore the issues, concerns and arguments regarding the state of the law.

At its root, the debate about assisted dying revolves around the two great competing principles of sanctity of life versus freedom of choice. However, it is not simply an exercise in arithmetic to decide which of these wins out and results in whether or not a specific act is legal. In fact, there are countervailing considerations to each of these two principles that complicate matters.

Sanctity of life can be overridden by what is deemed to be the best interests of a patient in a persistent vegetative state. This is the landmark case of Airesdale NHS Trust v Bland² [Bland], where the House of Lords held that the artificial feeding of Mr Bland, a victim of the Hillsborough disaster who was in a persistent vegetative state after being injured, was allowed to be withdrawn, i.e. he was allowed to die. Crucially, their Lordships’ judgments recognized that the principle of sanctity of life is not absolute. Secondly, freedom of choice also gives way to other considerations. Baroness Campbell, in a letter to The Guardian³, said that “[a]ssisted dying is not a simple question of increasing choice for those of us who live our lives close to death. It raises deep concerns about how we are viewed by society and by ourselves.” She made the point that the very people whom the intended legislation (Bill Assisted Dying for the Terminally Ill [Bill]) was intended for did not support and in fact condemned the Bill. Her view stems from the fear that allowing such choice leads to the presupposition that the life of the disabled is somehow less worth living and would lead to a slippery slope of society further marginalizing the terminally ill and disabled.

However, this does not answer the concern of allowing choice for those who think that they need it. One of the strongest arguments, in my opinion, for the legalization of assisted dying is that death is at times a better option than protracted suffering. Further, there is an obligation to relieve our fellow man of suffering. In the words of Professor Stephen Hawking⁴, “[w]e don’t let animals suffer, so why humans?” The difficulty with this, of course, is that most medical practitioners swear under the Hippocratic Oath, in which they refuse to administer a deadly drug even if asked for. Thus, this brings us back full circle to the fragile balancing act required if assisted dying is to be legalized.

In Singapore, s3(1) of the Advance Medical Directive Act ⁵ provides that any person of 21 years and not mentally disordered may make an advance medical directive if he does not wish to be subjected to extraordinary life-sustaining treatment in the event of a terminal illness. This deals with situations such as that in Bland. In that sense, it is a very limited statute given that, while it does give some effect to personal autonomy, it does not go too far beyond the common law in terms of permissible actions of medical practitioners.

There are two potential ways forward: first, the decriminalization of suicide and second, the careful use of prosecutorial discretion. However, any change in the former would be met with at least the same considerations in the above. As to the latter, there would need to be clear and principled guidelines based on good legal or ethical reasons, as the Attorney-General’s Chambers safeguards the public interests and should not be seen to undermine parliamentary intention. As it now stands, it is unlikely that there will be any major changes to this area of the law in Singapore in the near future, but as Singapore’s population rapidly ages, it is anticipated that there will be greater public debate as regards the planning of one’s death.

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[1] Cap. 224, 2008 Rev Ed

[2] (1993) AC 789

[3] Campbell, J 2006. ‘Stop trying to kill us off’, The Guardian, 09 May. Accessed at <http://www.theguardian.com/commentisfree/2006/may/09/comment.health> 28 September 2013

[4] Duffin, C 2013. ‘We don’t let animals suffer, says Prof Stephen Hawking, as he backs assisted suicide’, The Telegraph 17 September. Accessed at <http://www.telegraph.co.uk/science/10315476/We-dont-let-animals-suffer-says-Prof-Stephen-Hawking-as-he-backs-assisted-suicide.html>  21 September 2013

[5] Cap. 4A, 1997 Rev Ed

Internet Regulation—A myth in Singapore?

Internet Regulation — A Myth in Singapore?

Yip Yee Hui Josephine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[9]  Supra note 11.

[10] Supra note 11.

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

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

[13] Ibid.

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

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

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

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

[18] Supra note 21 at 81.

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

[20] Supra note 21 at 81.

[21] Supra note 19.

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

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

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

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

Litigation v Mediation

Litigation v Mediation

Nurmatha

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

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

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

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

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

How substantive is “substantive assistance”?

How Substantive Is “Substantive Assistance”?

Joshua Kow

INTRODUCTION

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

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

THE CERTIFICATE PER SE

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

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

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

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

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

[emphasis added]

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

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

CRITERIA IN ISSUING THE CERTIFICATE

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

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

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

THE NATURE OF SUBSTANTIVE ASSISTANCE

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

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

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

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

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

PROSECUTORIAL DISCRETION

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Legal Harmonisation Within ASEAN

On Legal Harmonisation Within ASEAN

Joanne Wong

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

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

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

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

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

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

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

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

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

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

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

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

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

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