Singapore Law Blog

Recently, Seng Han Thong needlessly got himself into hot soup with some ostensibly racist remarks. All, I think, because of his own inarticulate English. Here is what he said:

“… and, uh, I noticed that the, the PR mentioned that some of the staff, ‘cause they are Malay, they are Indian, they can’t converse in, uh, English good — well enough…”

I suggest that you watch the video to get a real sense of how the entire remark was made. I am certain you will conclude, as I have, that there is absolutely no racial prejudice intended.

First, he appears acutely aware throughout that he speaks English poorly, correcting himself regularly and speaking at a quick nervous clip. It should be obvious to any viewer that he would be the last person to criticise anyone’s English.

Second, he is trying to quote someone else - SMRT’s Goh Chee Kong, who had earlier spoken about the poor English of staff, who are “Malay, Chinese, Indians or any other race”. Here lies a lesson for all: when quoting, make it clear you are quoting! Seng Han Thong only said, “the PR mentioned that … ” and spoke very quickly at that, which I believe caused the qualifier to slip past the ears and minds of most viewers. He should have stated clearly and emphatically that he was quoting, even if in bad English: “there was, uh, someone from SMRT, I think he is the PR guy, I believe he said something like … ” And voilà, you have washed your hands clean of any trouble in what you are about to say.

Third, he was obviously trying to refer to the general diversity of SMRT staff, which is why he pinpointed Malays and Indians and forgot about the majority Chinese, which would not indicate diversity. As a second language English speaker, listing things does not come easily and immediately, and under the bright lights of a talk show, he probably rushed through that particular list. In the first place, it was probably his bad English that required him to use examples instead of simply stating “diversity” - in French and Mandarin I often use examples because I cannot find the correct word for what I want to describe. Here is another lesson for all: when listing races, cover your rear as Goh Chee Kong did by adding the disclaimer of “any other race”.

This episode exemplifies how language is at the heart of society. All questions, issues and debates in and about society boil down to points of language - whether in law, politics, philosophy, history or morality. Indeed four years of law school have taught me that law is language and language is law, and in Singapore that language is English. Legal conflicts from Parliament to courts to consumer contracts are disagreements over language. Drafters build impregnable fortresses out of big words and unsolvable mazes through complex linguistic riddles. Litigators blow them up with even more ridiculous stretches of the English language. And the top students in school, I have realised, are generally pretty handy with words, either written or spoken and sometimes both.

The point is: speak good English, or whatever other language you have to use in your life.

A cleaner receives a cheque of $54500 instead of $545 and proceeds to spend almost all of it. He is jailed for five months. This is legally correct - section 403 of the Penal Code, with its many illustrations, clearly criminalizes the appropriation of the property of others.

Judging from the comments on Stomp’s Facebook page, however, the moral dimension may not be so clear. While most people agreed that his act was criminal, a minority felt that he was not to blame as the money was foisted outright upon him, and that therefore the paying company was at fault.

Some also took issue with Mr Ramesh Tiwary’s analogy: “If you find $1000 on the road, you are duty-bound to return it to the police. Obviously no one threw away the $1000.” The issue here is at what point it becomes obvious that one cannot keep the money. Finding and keeping $1, $2 or even $10 is probably not going to attract criminal sanctions. What about $20? $50? Say I receive an extra $50 note in change, realise it later and decide not to return it. Should I be punished for the cashier’s carelessness? This can probably be answered only by the mysterious monster of prosecutorial discretion.

Perhaps the problem lies in Singapore’s haphazard lost and found system. There is no centralised lost and found system. Until 2009, even the police had separate lost and found sections for the six land divisions. Now they have a Centralised Found and Unclaimed Property Office, but private companies such as shopping malls and the bus, MRT and taxi operators still maintain their own systems for items found on their property, with no coordination with the police. The police keeps items for one month, after which they are auctioned off or destroyed. I think many Singaporeans feel that once we have lost something, it is lost forever.

In Japan, lost and found items for each municipality go to a central office. When an owner claims a lost item, he must pay the person who returned the item 5 to 20 percent of its value, depending on the item (for most items it is 10%). If an item is unclaimed after six months, the finder becomes the rightful owner of the item.

This robust system means that lost items are almost always reported and returned. Instead of the finders-keepers, survival-of-the-fittest mentality evident in some of the Facebook comments mentioned above, the community cooperates to find and return lost items. People who lose their things can go to a single location and almost all the time, expect to find it there, intact. The small fee is the price of a community where misplacing something does not mean sending it down a black hole, never to be seen again.

One of the best things about the English language, and indeed one of the main reasons for its global dominance, is its enthusiastic ability to welcome words from foreign languages as its own. There is hardly any language in the world from which English has not purloined a word or two, from obvious French words such as café and entrepreneur to aboriginal Australian terms like kangaroo and boomerang. Even the common word “launch” (used as a noun) is borrowed from Malay. And of course a huge portion of the English vocabulary is taken from Latin.

It is this use of Latin that I want to address, given the historically prevalent role of Latin in legal English. This is the consequence of the heavy and continuing influence of Roman law on both continental and English law, the latter of which is the basis of Singapore’s legal system.

Yet I think that Latin obscures too much of legal writing, rendering it incomprehensible and incoherent to lawyers and non-lawyers alike. Plain English movements and campaigns have targeted legal writing since the 1970s and the reduction of unnecessary Latin is one of the measures. Here I propose when Latin is acceptable in legal writing, along with a couple of my pet peeves.

1) When describing a specific legal concept. This is probably the most common use of Latin. Concepts like audi alteram partem and restitutio in integrum are known mainly or solely by their Latin names.

2) Concepts that have no easy or neat equivalent in English. This is similar to the first category. The statutory canons such as ejusdem generis and expressio unius exclusio alterius are some examples.

3) Latin terms that are used in general non-legal English. A fortiori, mutatis mutandis, per se and caveat emptor fall into this category.

Some terms, of course, come under more than one category. Others barely qualify. An example is “bona fide”. It is entirely replaceable with “in good faith”. Personally, I always use “in good faith”. To some people, however, the Latin term may carry a slightly stronger legal gloss that the English term does not have or they have in mind a distinction between legal good faith and general good faith.

Another example is “in pari materia”. One can correctly and easily say “section X is exactly the same as section Y of the English statute” and mean the same thing as “section X is in pari materia with section Y of the English statute”. Again, I imagine some people consider the Latin phrase to imply a certain legal comparison beyond mere exact similarity. I do not know of any such implication.

But those are not the pet peeves I was referring to. The two Latin phrases that make me want to cringe and cry are inter alia and arguendo. They literally, directly and completely translate into “among other things” and “for the sake of argument” respectively, with no meaningful layer, nuance or gloss, legal or otherwise. They are almost never used in non-legal contexts and yet are found far too often in Singaporean judgments and academic articles. A Lawnet search for “arguendo” reveals 60 Singapore cases that used the word. The count for “inter alia” runs into the thousands (I gave up). Some of the champions in this regard are Wing Joo Loong Ginseng Hong v Qinghai Xinyuan Foreign Trade [2009] 2 SLR(R) 814, a trade mark case with 41 instances of “inter alia”, Mercurine v Canberra Development[2008] 4 SLR(R) 907 with 24 “inter alia“s and Review Publishing v Lee Hsien Loong[2010] 1 SLR 52 with 23. Is “among other things” too vulgar and crude for the courts?

Short enough to be interesting but long enough to cover the important points - at least according to Mr Amolat Singh, this is how judgments should be. Yet we observe that court decisions are becoming longer and longer, especially at the Court of Appeal. This has been empirically proven in “An Empirical Study of the Development of Singapore Law” (2011) 23 SAcLJ 176.

As earlier promised, I will discuss the distinctive writing styles of three judges who write very well but very differently: Justice Choo Han Teck and Justices of Appeal Andrew Phang and VK Rajah. Justice Choo is in my opinion the best writer on the Supreme Court bench, leaving aside legal reasoning and knowledge, which I am not in any position to critique.

Justice Choo embodies the miniskirt principle well. His decisions are generally brief and to the point, without missing necessary issues. He often does not go on to discuss further issues if he has decided on the points necessary to dispose of the case. He does not muddy the waters with hypothetical branches of reasoning (“even if X is right on issue 1, he would still fail on issue 2”). His decisions are therefore clean and easy to follow, untrammeled by the weight of unhelpful dicta.

Justice Choo is sparing with his use of quotes compared to other judges, who make a habit of quoting copious paragraphs from textbooks and cases. His preference for his own words earns my respect for his writing ability. Yes, the common law is a treasure trove of beautifully written judgments - but I think judges should find new ways to express legal ideas in their own words and add their own legacy to Singaporean common law. A citation to authority should suffice - if the reader wants to read the source, she can easily find it herself.

The third point I appreciate of Justice Choo’s judgments is his skilful use of literary references. The use of such references is becoming increasingly common, especially among the three judges mentioned (Choo, Phang, Rajah). However, I think Justice Choo’s references are particularly well-timed and appropriate. He also goes beyond the usual Shakespeare clichés, such as Chan Sek Keong CJ’s use of Portia’s “the quality of mercy is not strained” soliloquy in discussing judicial mercy in PP v UI [2008] 4 SLR(R) 500, to weave a variety of literary and mythological threads into his judgments. One of my favourite judgments of recent times is Ong Jane Rebecca v PriceWaterhouseCoopers [2011] SGHC 146.

VK Rajah and Andrew Phang JJA are undoubtedly two of the most brilliant legal minds in Singapore’s legal history, and this is evident in their writing. Both of them write clearly and convincingly and organise their judgments very neatly. Both are also known for their very long appellate judgments, which can be quite a joy to read despite their length.

Between the two, I prefer Rajah JA’s writing. I particularly enjoy his use of archaic words that are rarely seen these days: gainsaid, apposite, salutary and others. He is also rather more descriptive and more generous in his use of metaphors.

One thing I dislike about Phang JA’s writing is his liberal use of italics. A hallmark of good writers is their ability to use words to express nuance. Emphasis can be portrayed in many ways: repetition, the use of more forceful words, clever use of punctuation, short sharp phrases and many others. Italics are an easy way out. Rajah JA does not hesitate to use strong words, both negative and positive, in his descriptions.

In sum, all three judges are definitely great writers and make for far more pleasant reading than any English judge, at least for Singaporeans. I am glad that our judges clearly put in a lot of thought and effort into their writing. Whether miniskirts or long flowing dresses, one can be certain that justice is done.

Lianhe Zaobao has a report on an 18 year old Hong Kong-born Singaporean who wishes to renounce his Singaporean citizenship to avoid National Service, and is seeking judicial review of the ICA’s decision not to allow him to do so as a minor under the age of 21.

I have been interested in matters of citizenship law for a while now, which is why I created a Wikipedia article on Singaporean nationality law several years ago. This area of law is not well developed in Singapore, and many policies do not exist in legislation. For example, dual citizenship is not explicitly legislated against; although Articles 134 and 135 of the Constitution authorise the Government to deprive a Singaporean of citizenship on acquisition of foreign citizenship or exercise of exclusive rights of foreign nationals such as using foreign passports. Article 122(4) requires citizens born overseas to renounce all foreign citizenships by the age of 22.

This judicial review case will be the first of its kind in Singapore to the best of my knowledge and will therefore be a welcome addition to local jurisprudence on citizenship and nationality. As far as I can tell from the newspaper report, however, the case is dead in the water.

Article 128(1) of the Constitution provides that citizens over the age of 21 and of sound mind may renounce their citizenship. Given that this is the only provision dealing with renunciation and that the express mention of one thing generally excludes others, it should be beyond question that the minimum age for renunciation is 21 (except for married women under 21 who can also renounce according to Article 128(3)).

The report states that the youth argues that he is not a “100% citizen” and therefore not a citizen within the meaning of Article 128. This is because he will only be awarded full citizenship rights after he renounces other citizenships under Article 122(4).

However, citizenship is citizenship; it is 100% or nothing. There are other statuses such as PR and work pass holders which give a right to remain among other things, but citizenship is a singular status that one has or does not have, at least in Singapore. Other countries do have different types of citizenship, the most well-known being the United Kingdom with full British citizenship, British Overseas citizenship, British National (Overseas) and other historical holdovers, along with British (Isle of Man) citizens who are not EU citizens. Similarly, Danish citizens of the Faeroe Islands and Greenland are not EU citizens. Americans from American Samoa are nationals who have passports and the right to live indefinitely in the USA but are not citizens with the right to vote.

It is also unclear what is meant by not having full citizenship rights when he is holding on to other citizenships (and it even appears from the article that he does not have any other citizenship but is waiting to regain Hong Kong (China) nationality). A citizen has all the rights of citizenship until he renounces citizenship or is deprived of it. Having to renounce other citizenships does not appear to make Singaporean citizenship itself any less than 100%.

Furthermore, there are different categories of citizens under Article 120(2): citizens by birth, by descent, by registration and by naturalisation. They come with different rights. For example, citizens by descent must fulfill minimum Singapore residence requirements before they are allowed to pass citizenship to overseas-born children. Citizens by registration and naturalisation may have their citizenship deprived if they commit certain acts including getting fined more than $5000 or jailed more than a year. Given such differences the status of a “less than 100%” is conceptually impossible, since it is not possible to determine which status is the 100% starting point.

I certainly look forward to a judgment from the courts on this issue. Such cases are rare although one imagines that similar situations are not uncommon. However, most people would probably either suck it up and serve or dodge the draft and never return. Or return and get fined $3000. (The maximum penalty under section 33 of the Enlistment Act was increased to 3 years jail or $10 000 fine after the Melvyn Tan saga).