Singapore Law Blog

The Chief Justice's Legal Profession Act powers

Fri, 26 Apr 2013 12:42:00 +0800

The Chief Justice has a number of powers under the Legal Profession Act. Two of these came up for adjudication by the Court of Appeal recently:

(1) The CJ’s power under section 82A to grant leave for an investigation into a complaint of misconduct against a Legal Service Officer or non-practising solicitor (“section 82A power”); and

(2) The CJ’s power under section 90 to appoint Disciplinary Tribunals for a formal investigation into misconduct of an advocate and solicitor (“section 90 power”).

What should be the proper avenue of recourse against a decision of the CJ in exercise of these powers? Following the latest decisions of the Court of Appeal in Manjit Singh v Attorney-General [2013] SGCA 22 and Re Nalpon Zero Geraldo Mario [2013] SGCA 28, the correct answer is probably that judicial review should be sought.

Manjit Singh

The Court of Appeal (Chao Hick Tin JA, Judith Prakash J and Andrew Ang J) decided in Manjit Singh that the section 90 power is amenable to judicial review, even if it may arguably be a “ministerial” or purely administrative power, and even if it may lead to delays in the disciplinary process.

In reasoning why judicial review should be available for what the AG argued was essentially a procedural step in disciplinary proceedings, the Court of Appeal twice cited the famous sentence from Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525, familiar to anyone who has attended a single public law lecture in Singapore: “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.”

Re Nalpon Zero Geraldo Mario

Judicial review was not in issue in Re Nalpon Zero Geraldo Mario, where a differently constituted Court of Appeal (Chao Hick Tin JA, Andrew Phang JA and V K Rajah JA) decided that the CJ’s section 82A power is not a judicial power of the High Court, but is exercised in the CJ’s position as President of the Legal Service Commission (“LSC”). That being the case, no appeal to the Court of Appeal is available from the exercise of the section 82A power.

Issue 1 - What is the nature of the section 90 power?

The nature of the section 90 power is not entirely clear. While Manijt Singh holds that it is not a judicial power, the clearest statement on its actual nature is that the power “is clearly administrative and no different from what the position would be if the power … were … vested in … the Attorney-General”.

Is the section 90 power also a power of the CJ as President of the LSC, given that section 82A(6) states that the CJ “may grant leave and appoint a Disciplinary Tribunal”? It is an arguable case that if the power to grant leave under section 82A is an LSC power, then the power to appoint a DT under section 82A is similarly an LSC power, then perhaps the general power to appoint DTs under section 90 is an LSC power.

It would be a stretch to extend this logic as far as section 90, however, given that section 82A deals specifically with Legal Service Officers, who, under Article 111(3) of the Constitution, are subject to the disciplinary control of the LSC.

Perhaps it is not necessary to define the precise nature of this power - we could content ourselves thinking of it as a simple administrative power in the CJ’s position qua CJ, just as it could have been vested in the AG, the PM, or even the Senior Undersecretary to the Minister for Magic.

Issue 2 - Is the section 82A power amenable to judicial review, reading Re Nalpon Zero Geraldo Mario with Manjit Singh?

What can definitely be distilled from both cases is that neither the section 82A power nor the section 90 power is exercised in the CJ’s judicial capacity. The section 82A power is, as the Court of Appeal has held, a power of the CJ as President of the LSC, and the section 90 power is an administrative power of some sort.

If the section 90 power is amenable to judicial review because it is a discretionary statutory power exercised in a non-judicial capacity, the same lofty Chng Suan Tze logic should be applied to the section 82A power. All statutory powers should by default be subject to supervision by the courts in the form of judicial review. This is arguably even more important in the case of section 82A, which is a power to grant leave. If judicial review were not available, a decision of the CJ not to grant leave would be the end of the matter, with no relief available for complainants whether by appeal to the Court of Appeal or by judicial review.

The counter-argument would be section 82A’s statutory intent to preserve the LSC’s control over its officers. As the Court of Appeal stated in Re Nalpon Zero Geraldo Mario, “for Legal Service Officers, it is the Legal Service Commission that has the “final say” as to the consequences of the officer’s actions.” It is submitted nonetheless that the courts must always be present to supervise the exercise of discretionary powers, at least where there is a breach of natural justice, irrationality, irregularity or unreasonableness.

One criticism of Re Nalpon Zero Geraldo Mario

In holding that the CJ exercises his section 82A power as President of the LSC, the Court of Appeal cited parliamentary intent to consolidate the disciplinary processes for all Legal Service Officers under the control of the LSC, instead of having some subject to LSC disciplinary control and some to Law Society disciplinary control. Applying this intent, the Court of Appeal decided that section 82A was meant to give the LSC the final say over whether any investigation would proceed against a Legal Service Officer.

While this is eminently sensible, it is unfortunate that the Court of Appeal did not analyse why complaints against non-practising solicitors are also subject to the additional section 82A leave stage before the CJ. It cannot be that LSC control applies equally to non-practising solicitors, who have no relationship with the LSC.

Had the Court of Appeal considered this point, perhaps the conclusion that the CJ acts under section 82A as President of the LSC would not have been as inevitable. It seems to your humble unqualified practice trainee that the section 82A power is probably, like the section 90 power, a simple administrative power vested by statute in the CJ.

Enhanced Marriage and Parenthood Package

Tue, 12 Feb 2013 20:31:00 +0800

This is not a very legal post, but I figured I should post something on this blog and keep it scuffling along for a while longer.

The Enhanced Marriage and Parenthood Package benefits given by the government to encourage Singaporeans to have more children will, in my opinion, be morally and practically deficient as long as they continue to discriminate on the following four factors: marital status, employment status, citizenship, and gender.

Marital status

This is, I think, the most irrational form of discrimination and the one that most urgently needs to be changed. The Baby Bonus Scheme and 16 week maternity leave are available only to children of married parents and to married mothers respectively. Once a child is born, she is a child like any other and the mother is a mother that needs maternity leave as much as any other mother (some might argue a single mother needs it even more). It is ridiculous to deny benefits to an innocent child and to further disadvantage her when life is probably going to be tougher for her than for most, to grow up without a father.

Employment status

The concept of maternity leave and pay must change. It should not be a direct one-to-one compensation of a woman’s working time spent bearing and raising a child. It is not some reservist make-up pay where you are paid the money you would have earned. Maternity pay should be paid to all mothers, whether working or not, perhaps with a supplemental component that takes into account how much the woman would have made in her working life. But the message cannot be that we value mothers who work more than we value mothers who don’t.

Gender

Paternity leave was extended under the enhanced package. It is a step forward, but fertility will remain low if half of all parents (fathers) hardly get to see their children’s first months in the world.

Citizenship

I’m not going to suggest that the benefits should be given to everyone, regardless of citizenship status. As the benefits are currently structured, they are generally available only to Singapore citizen children and their parents. That is fair. But if we are serious about increasing our “Singaporean core”, we should think about extending citizenship at birth to a wider class of children born in Singapore. Currently, a child is Singaporean at birth only if at least one parent is a Singapore citizen.

I think we can extend citizenship to children born to PRs in Singapore (perhaps at least one PR parent, or both PR parents). We risk creating an underclass of residents born and raised in Singapore but without the benefits and rights of citizenship if we do not facilitate citizenship for second generation immigrants - this has happened in many European countries and in Japan, but not in the USA, which grants citizenship to all children born on its territory. Granting citizenship at birth would be the simplest and strongest recognition of the inclusion of immigrants in Singapore society.

Referral fees

Sun, 04 Nov 2012 22:26:00 +0800

Why are solicitors so strictly forbidden from paying referral fees for business? This prohibition is found in both the Legal Profession Act and its subsidiary Professional Conduct Rules. In recent years, a number of lawyers have fallen foul of the rules against referral fees. Law Society of Singapore v Phyllis Neo is a landmark case in evidence law, particularly on entrapment, because the lawyers in that series of cases were entrapped by a private investigator posing as a real estate agent demanding referral fees. Law Society of Singapore v Michael Chong is remarkable for the fact that one of the solicitors involved was struck off the roll, a heavy punishment for what the Court of Three Judges considered a particularly egregious breach.

But when one thinks about it, what is the problem behind paying referral fees to obtain business? How does it affect any of the many things professional rules are meant to protect - the administration of justice, the dignity of the profession, public confidence, and the like?

In my opinion, allowing referral fees might actually improve the administration of justice. We have seen in a number of recent disciplinary cases lawyers who faced a conflict of interests between their clients and referrors, who were generally moneylenders or real estate agents or both. In Law Society of Singapore v Tay Phuay Khiang, the court went as far as to express some disquiet over this trend and the risks it presents by putting lawyers in positions of potential conflict.

Whereas if lawyers were allowed to pay referrors a fair fee for their referrals, the risk of conflict is greatly reduced. Having received fair consideration for their referral services, referrors can quietly step out of the picture, instead of pressuring or inducing solicitors to squeeze some benefit out of the usually hapless client, such as exorbitant interest rates and onerous security for housing loans.

Referral services are a valuable service that carry a price. Imagine if lawyers were forbidden from paying for printing and photocopying services. Because no one will print stuff for free, lawyers would be left with two choices. They can either not print anything and thus be severely hampered in the practice of law, or they can work out with printing service providers some under-the-table deal to pay for their services.

Some lawyers have tried the latter in the context of referral services, and been punished for it. The rest, as honourable and dignified lawyers, are left to do what Prof Michael Hor once vividly described in an Evidence class when discussing Phyllis Neo: “they sit, honourable and dignified, in the top floor of an office building, and hope someone who needs legal services walks by and knocks on their door.”

A stronger judiciary

Fri, 24 Aug 2012 23:03:00 +0800

Marbury v. Madison[1], the celebrated U.S. Supreme Court case that forms the basis of judicial review in American law, was criticized in its time as a Federalist power grab and continues to be so labelled by some scholars – including Professor Weiler who at one class memorably called it “the greatest judicial power grab in history”.[2] For good reason too – after all, Chief Justice John Marshall pulled out the famous words that would live on forever in constitutional law textbooks seemingly from thin air:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

Two recent local cases have led me to note the incursions of judicial power into executive power. I am definitely not suggesting by any stretch that our judiciary is sinisterly engaging in a similar sort of murky politics as the judges of a newly independent United States over 200 years ago. Yet it is undeniable that in Muhammad bin Kadar v. PP[3] and Tan Eng Hong v. AG[4], the Court of Appeal flexed its judicial muscles in fairly significant ways.

Tan Eng Hong is a fascinating case, but I will focus very specifically on the preliminary issue to Issue 4 in the Court’s judgment. This point is particularly interesting as the Court of Appeal rejected jurisprudence from the motherland of all judicial review – the United States – in deciding that it had a wider jurisdiction than the Prosecution argued for.

This preliminary issue regards the requirement of a “real controversy” before a court can adjudicate. The question was whether the absence of a “real controversy” affected a court’s jurisdiction such that it had no jurisdiction to hear a case, or whether such an absence merely affects its discretion as one of the factors to consider when deciding whether it can hear it.

Article III of the U.S. Constitution and the U.S. Supreme Court case of Lujan v. Defenders of Wildlife[5] support the proposition that a controversy must exist before American courts can exercise judicial power. (Factoid: Article III is the very article that invalidated the statute struck down as unconstitutional in Marbury v. Madison (the Judiciary Act). However, nothing in it mentions judicial review.)

The American requirement was rejected by the Court of Appeal. In fairly grandiose terms, the Court declared:

The courts should be slow to read in jurisdictional requirements which limit the sphere of their judicial power as such requirements restrict access to justice.[6]

And later

The court’s function is … to ensure, as the guardian of the Constitution, that the Constitution is upheld inviolate.[7]

The conclusion is that courts in Singapore can hear cases with no real controversy, with the caveat that they should and will be slow to do so unless there is a real public and legal interest in the issue. I will not discuss the rest of this case, which is worth reading in full. It suffices to note here that the Court of Appeal has, with this preliminary point, declared a wide jurisdiction for itself – wider than what the AG argued for, and wider than American courts.

In Kadar, there was no expansion of jurisdiction but the imposition of a tricky and heavy duty on its sister branch of government, the executive, in an area very recently legislated by the third branch of government, Parliament. The Court of Appeal took the bold step of imposing on the Public Prosecutor (or “declaring”, as some would have it) a common law regime of disclosure of unused material, on top of the fresh statutory regime that had just come into force under the Criminal Procedure Code 2010.[8] This new regime required the Prosecution to disclose to the defence unused material “that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused”, or had a real chance of leading to such material. This was on top of the new CPC 2010 regime which already provided for a reciprocal disclosure regime for unused accused statements. The Prosecution was sufficiently concerned to seek clarification from the Court itself by way of a Criminal Motion.[9]

The Prosecution highlighted various possible practical difficulties if it was, as an organization, required to disclose all unused material which it knew might be relevant. After all, the AGC is a massive organization and if the “Prosecution” is taken to mean all the investigative and enforcement branches of Government or even the entire Government, then “undisclosed material in its possession”[10] could mean a serious ocean of information.

The Court of Appeal clarified, among other things, that the Prosecution did not have to search for material. Nor would prosecutors be held to account if disclosures that they did not know would be relevant were not made, although they are expected to make disclosures where they know it would be relevant in a particular case, including a case they are not involved in.

It is clear that the Prosecution now has a duty more onerous than that required by statute. This higher standard was imposed entirely by the judiciary of its own accord. The Court based this extended duty on the common law as applied via section 5 of the old CPC and section 6 of CPC 2010, and justified it based on ethics, an advocate’s duty to the court and the Prosecution’s duty to the public.[11] The power to enforce the new regime will arise from that ultimate deus ex machina, that kitchen sink of judicial powers – the inherent jurisdiction of the court.[12] The judiciary has shown itself unafraid to go beyond what is provided by statute and to state new rules of law, even if it may greatly inconvenience the executive, where in the past cases like Rajeevan Edakalavan and Constitutional Reference No. 1 of 1995 appeared to prefer the route of less hassle for the executive.

I agree very firmly with the substantive decisions in both Tan Eng Hong and Kadar. They reflect a very wise Bench that is alert to the social and political reality of the community that looks to them for guidance. Nonetheless, it serves to remember the words of a disgruntled Thomas Jefferson, complaining about Marbury v. Madison in a letter:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem”, and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties ; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves.[13]

[1] 5 U.S. 1 Cranch 137 (1803)

[2] Charles F. Hobson, Marbury v. Madison and the Revolution of 1800: John Marshall, the Mandamus Case, and the Judiciary Crisis 1801-1803, 72 Geo. Wash. L. Rev. 289 at 299-301 (2003)

[3] [2011] 2 SLR 1205 (Kadar)

[4] [2012] SGCA 45 (Tan Eng Hong)

[5] 504 U.S. 555 (1992)

[6] Tan Eng Hong at para. 142

[7] Tan Eng Hongat para. 143

[8] Kadar at paras 99 – 121

[9] [2011] 4 SLR 791

[10] Kadar at para. 113

[11] Kadar at paras. 105, 109 – 112

[12] Kadar at para. 112

[13] Letter to William Charles Jarvis, Monticello, September 28 1820

A reply

Sun, 01 Jul 2012 11:14:00 +0800

This is Janahan’s reply to “The matter is now before the courts”. My reply is in the comments.

In a year where I feel social media is increasingly going to the dogs, its good to see a thoughtful and principled comment on things. Unfortunately, I am going to have to disagree with you on this one.

Re: The Matter is Now Before the Courts

My disagreement here probably arises from a different interpretation of what this statement actually means. I take to mean (at least if I ever use): “We don’t have facts. We don’t have evidence. The matter is before the courts. The matter is before the competent authority. There is no need to discuss it. Is there any good that will come from discussing it? No. Shall we avoid discussing it?” The statement’s force of argument derives from the desire to avoid needless chitter-chatter and not ideas of due process and the presumption of innocence.

Re: To What Extent Should there be Discussion Concerning Issues Before the Court

I believe the maturity of an individual or society is not measured by the extent to which they do what is permissible but rather by the extent to which they do what is beneficial. Thus, while nobody can curtail individuals and society from discussing, debating, judging and gossiping, these responses are an indication of the nature and maturity of society. Insofar as such activities are not beneficial, they reflect negatively on society and individuals. And I fail to see how beneficial they can be when facts and evidence are yet to be revealed (unless we restrict ourselves to objective hypotheticals which does not seem to be what people are keen on doing).

Re: Factual Guilt and Legal Guilt

At the risk of complicating the matter, I would like to introduce a third concept: Social Guilt. I introduce this concept because I believe this is what we are really concerned with.

Legal guilt is simply the guilt of a person as decided by the courts. If he is convicted he is legally guilty. If he is acquitted he is legally innocent.

Factual guilt is concerned with whether the individual committed the crime in actual fact. The problem with factual guilt is that it will forever be unknown to us.

Social guilt is simply the way society treats an individual post-trial. Do they treat him like he is guilty? Do they treat him like he is innocent? Or do they treat him like something in between.

The question then is how closely should social guilt conform with legal guilt. My instinctive response is in general social guilt should equate to legal guilt. The closer it equates, (again) the more mature an ordered society we become. Of course I have not thought about this that deeply and perhaps there are exceptions or complexities to account for.

Of course, again we can’t stop the gossip and talk in coffee shops and facebook. I am not saying we should but rather that the degree of concordance between legal and social guilt is a reflection of society. Also, social guilt has implication beyond mere kopitiam talk. Insurance is one example. Generally a prospective insured has to disclose whether he is, at the time of taking out the insurance, being charged with any crime. But should he be required to disclose charges from which he was acquitted from (prior to taking out the insurance)? The answer to this question may depend on how we view social guilt.

The matter is now before the courts

Thu, 28 Jun 2012 16:26:52 +0800

The recent spate of high-profile criminal cases has led me to notice and be irked by one minor recurring point: it seems annoyingly common and even acceptable to worm out of giving comment by saying something to the effect of “the matter is now before the courts.” Here is one example by Hitachi Data Systems on the sex-for-contracts scandal, and here is another by DPM Teo Chee Hean on the Commercial Affairs Department investigation into City Harvest Church leaders.

I am not saying that these people should have commented; they have every right to say or not say whatever they want, and in these cases they may well be right not to inflame tensions. What bugs me is how they hide behind the courts as if it would be wrong or inappropriate to talk about court matters, rather than outright saying that they prefer not to comment. There is no magic about court proceedings, no need to “let the law take its course” as if the course of the law would be encumbered by talking about it.

Behind the concerns about discussing cases is the worry that making comments will prejudice the case before the courts. But Singapore has professional judges as triers of fact, and no jury. There is no real concern that our judges will be influenced by stuff they read in the papers. In any case, even jurisdictions that use juries have rules and procedures to remove potentially biased jurors, and in Singapore parties can apply for judges to recuse themselves on the grounds of apparent or real bias.

The other greater concern is that comments will prejudice an accused individual in the eyes of the public before a fair court of law pronounces its verdict, which may well acquit the individual of all wrongdoing. Underpinning this is the age-old principle of “innocent until proven guilty”, and indeed I understand if, say, the DPM is careful with his words because after all, people do take what the DPM says quite seriously.

However, I find that such caution underestimates the intelligence of the general public, the increasing number of online idiots notwithstanding. A statement is all that it is, and not many people will jump readily to unfounded conclusions. “Z is being investigated for criminal breach of trust” - would an ordinary reader immediately think that Z has committed CBT? I think not. A person who is being investigated is innocent, but it is a bare fact that he is being investigated. “Being investigated”, “charged”, “accused” - these are bare facts or states of affairs, that do not suggest guilt, and there is no reason to worry that the public will incorrectly associate these terms with guilt.

The ultimate question is the importance of the law in our society. If we want the law to guide and inform our lives, then yes, we should wait for the law to run its course before forming personal judgments. Yet the law is but one tiny part of society, one minuscule low-stakes game in the arena of life. This recalls the debate in the aftermath of William Ding’s acquittal about factual and legal innocence. Law Minister K Shanmugam emphasized that legal innocence does not equal factual innocence. Judge of Appeal V K Rajah was of the view that it serves no purpose to separate legal and factual innocence after a court has come to a conclusion.

I prefer K Shanmugam’s view. In my opinion, a guilty or innocent verdict is little more than that. The guy pays a fine or goes to jail or goes free or whatever. Life goes on. People talk. People judge. And they should have the right to, regardless of what goes on in court.

That cancelled rock concert

Sun, 13 May 2012 16:50:58 +0800

The application to the High Court for a declaration that the Prime Minister does not have an unfettered discretion in deciding whether and when to call a by-election has been withdrawn. The applicant also asked the court to order the Prime Minister to call a by-election for Hougang within three months or a reasonable time.

While I would not, unlike Professor Thio Li-ann, compare the withdrawal to a cancellation of my favourite rock group’s (Bon Jovi, by the way) concert, there is indeed a sense of disappointment with the withdrawal of the application, which nonetheless is the right move by the applicant given that Nomination Day has been announced. Constitutional challenges are rare in Singapore. We had missed another interesting one on the constitutionality of section 377A of the Penal Code in PP v Tan Eng Hong when the 377A charges were amended.

I have earlier expressed my views on this by-election conundrum. To summarise, the text of the Constitution can (as with most things legal) be read either in favour of or against a generous discretion limited only by the requirement of General Elections. The substantive history of our constitution and our democratic model tend to suggest a preference for such a generous discretion within the Prime Minister’s power. However, there are problems that could arise under a less responsible Prime Minister and I am in favour of imposing, through legislation or constitutional amendment, a time limit of six months or thereabouts.

Palm tree justice

Mon, 30 Apr 2012 16:14:00 +0800

The term “palm tree justice” is a fairly well-known term in legal contexts, used to describe legal redress meted out at the whim of the adjudicator with little regard for the certainty one expects from a system of rules. The term generally carries a negative connotation. We see it from time to time in local judgments and it appears to be a favourite of Justices of Appeal Andrew Phang and VK Rajah. Out of the 7 local judgments in Supreme Court history which have used the term (at least according to Lawnet), 5 were written by either of these two judges. These include the well-known Court of Appeal cases of Lee Hsien Loong v Singapore Democratic Party, Lau Siew Kim v Yeo Guan Chye Terence and Lock Yeng Fun v Chua Hock Chye, as well as the famous Digilandmall.com High Court case that propelled VK Rajah into worldwide academic fame and local judicial stardom.

Have you ever wondered where the term originated? It is something I have often found quite puzzling. My attempts at researching this matter have generally pointed towards the practice of local Muslim judges in the dusty plains of medieval (or maybe even modern-day) Arabia in dispensing justice to villagers under the shelter of a central oasis of sorts.

Were I a cadi dispensing justice under a palm tree I might have been able to solve the problems which arise in this case. - Lawton LJ in McPhail v Persons Unknown

These are very wide words, but I am quite unable to see how it can appear to the court to be just and convenient to make such an order … Were it otherwise, every judge would need to be issued with a portable palm tree. - Donaldson LJ in Chief Constable of Kent v V

“If there were to be the amplitude of discretion for which [counsel] contends, I find it very difficult to see how one could formulate any sensible principles, for the exercise of discretion, or how one could draw a boundary to delimit the area which should enjoy the shade of the palm tree. - Bridge LJ in Allen v Sir Alfred McAlpine & Sons

I hope the use of the term sounds to you, as it does to me, quite illiberal and reeking of a snooty air of judicial superiority and historicism: “my legal system has rules and precedents and this other palm tree system doesn’t.” My brief study of Islamic law this semester has shown me that this is far from the case, and that qadis are as bound as any common law judge to a complex system of rules and principles. A few very powerful men (the Prophet and then the Rightly-Guided Caliphs) held a lot of judicial power in the early days of Islamic jurisprudence, but since the 9th century AD or so, Islamic jurisprudence has been an enormous field of study that takes years to master.

I therefore hope judges choose a different term when describing unfettered or poorly exercised judicial discretion, rather than denigrate a legal system that is in fact far older and perhaps even richer than the English common law. There is no need for colonialist attitudes in the 21st century, least of all in Singapore, a country which recognizes Islamic law to some extent, that counts as neighbours two majority-Muslim states where Islamic law plays a significant role, and a country which itself was not too long ago victim of attitudes represented by flippant phrases such as “palm tree justice”.

Of course I recognize that this is simply a convenient linguistic turn of phrase and judges probably do not realize its connotations. My research has also thrown up another possible source for “palm tree justice”, but this is merely some guesswork on my part. Deborah, the only female judge in the Bible, is said to have delivered her judgments from under a palm tree in Judges 4:4-5

And Deborah, a prophetess, wife of Lapidoth, she judged Israel at that time.

And she dwelt under the palm tree of Deborah between Ramah and Bethel in Mount Ephraim: and the children of Israel came up to her for judgment.

However, it is not clear how a connection can be made between this and the modern usage of the term, since it does not appear that Deborah was an unprincipled judge. Nonetheless, given the age of the Bible, this may be the true origin of the term, whose meaning somehow morphed along the way.

Constitutional beauty

Sun, 01 Apr 2012 01:27:00 +0800

Article 1 of our Constitution reads:

“This Constitution may be cited as the Constitution of the Republic of Singapore.”

Article 2 continues:

“In this Constitution, unless it is otherwise provided or the context otherwise requires - “Cabinet” means the Cabinet constituted under this Constitution … “

Not very inspiring is it? I doubt fervent drumbeats of national pride thump in the depths of your soul when reading the opening lines of our Constitution. Most countries’ constitutions, however, start with some declaration or other that sets out the purpose of the constitution and thereby of the state: the state is truly constituted by its founders. These can be quite poetic and lyrical. Let’s look at a two examples.

Preamble to the Constitution of the United States of America:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to Ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Preface to the Constitution of Japan:

“We, the Japanese people … determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution … We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want … We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.”

Have a look at almost any other constitution. It is virtually universal to express the desire of the people and to tell the story of how the constitution came to be written: in Japan’s case above, out of the ruins of war. China’s constitution starts with a somewhat rambling but proud history of the ancient land. The Namibian and South African constitutions call for their nations to rise from the hell of apartheid and to never return.

Is such lyricism necessary in a legal document? Singaporeans are generally fairly practical folk who arguably care more for substance than form. Singapore’s independence was also not violent or hard-fought; in fact it was almost forced against its will. Yet I think there is value in remembering where we started and where we want to go, to have a higher ideal to always aspire to. This may also go some way towards resolving our national identity crisis.

But there is no need for us to struggle to artificially write something pseudo-inspirational. The great Lee Kuan Yew proclaimed our separation from the Federation of Malaysia in what I think are very beautiful words. Here is the Proclamation of Singapore in the Separation Agreement:

WHEREAS it is the inalienable right of a people to be free and independent;

AND WHEREAS Malaysia was established on the 16th day of September 1963, by a federation of the existing states of the Federation of Malaya and the States of Sabah, Sarawak and Singapore into one independent and sovereign nation;

AND WHEREAS by an Agreement made on the seventh day of August in the year one thousand nine hundred and sixty-five between the Government of Malaysia of the one part and the Government of Singapore of the other part it was agreed that Singapore should cease to be a state of Malaysia and should thereupon become an independent and sovereign state and nation separate from and independent of Malaysia;

AND WHEREAS it was also agreed by the parties to the said Agreement that, upon the separation of Singapore from Malaysia, the Government of Malaysia shall relinquish its sovereignty and jurisdiction in respect of Singapore so that the said sovereignty and jurisdiction shall on such relinquishment vest in the Government of Singapore;

AND WHEREAS by a Proclamation dated the ninth day of August in the year one thousand nine hundred and sixty-five The Prime Minister of Malaysia Tunku Abdul Rahman Putra Al-Haj Ibni Almarhum Sultan Abdul Hamid Halim Shah did proclaim and declare that Singapore shall on the ninth day of August in the year one thousand nine hundred and sixty-five cease to be a state of Malaysia and shall become an independent and sovereign state and nation separate from and independent of Malaysia and recognised as such by the Government of Malaysia.

Now I LEE KUAN YEW Prime Minister of Singapore, DO HEREBY PROCLAIM AND DECLARE on behalf of the people and the Government of Singapore that as from today the ninth day of August in the year one thousand nine hundred and sixty-five Singapore shall be forever a sovereign democratic and independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society.

A “more just and equal society”. I find in this oxymoronic turn of phrase the essence and the marvel of his words. One would think that something is either just and equal or it is not. 1+1 = 2: it cannot be any more equal or less equal. Yet here he recognises that justice and equality cannot be attained but can always be hoped for. No one really knows what justice is, and no two people in the world can truly be treated equally, different and diverse as we all are.

“Singapore shall be forever a sovereign democratic and independent nation”. This is also tremendously inspiring. Forever, not just today and tomorrow, or the next couple of hundred years, but forever. As Chan Chun Sing demonstrated in the run-up to last year’s General Elections, many Singaporeans and perhaps Chan himself believe that Singapore will eventually and inevitably go the way of the Demak Sultanate and the Lanfang Republic. Not LKY, not in these words. Forever we will be free, or at least we try.

In any case, I suggest that these words, rather than remain in a separate document, should be included in our Constitution as a preamble, as a reminder of our beginnings and as a clarion call to all who act in the name of the Constitution - the President, the Cabinet, MPs, judges - to always keep in mind the goal of “a more just and equal society.”

FDW

Tue, 06 Mar 2012 10:39:00 +0800

I am very, very happy that a weekly day off for foreign domestic workers will finally be legislated. It is somewhat sad that such a fundamental bit of regulation took as long as it did. I recall being shocked when I discovered that a day off was not mandatory, that NGOs such as HOME and TWC2 actually had to lobby for a change in the laws. I was fortunate to grow up with an FDW in the household until 2004. Even more fortunately, I had parents who understood fully the importance of respect and love for all people, whether richer or poorer, superior or subordinate, and insisted I grew up the same. All our FDWs enjoyed weekly days off and sometimes weekends off and were generally free to leave the household for personal errands at any time.

But it is important to look forward now that changes are being made. There are details that have to be ironed out. How long is a day off? I imagine some employers letting their FDWs out for a few hours each week.

In the long run, the entire “domestic worker” mindset and structure must change. The idea that an FDW is entirely the responsibility of the employer cannot continue. It is sustained by rules such as the security guarantee that is forfeited when an FDW is repatriated for pregnancy or for absconding. FDWs are adults who can and should take responsibility for their own actions. Ideally, FDWs would eventually be seen as independent workers who happen to be lodged with their employers. They would enjoy public holidays, annual leave and other formal benefits. If they commit some work permit violation or other, then they simply bear the consequences on their own account.

By-election

Sun, 26 Feb 2012 12:55:00 +0800

The recent expulsion of Yaw Shin Leong from the Workers’ Party and the consequent vacation of his seat in Parliament under Article 46(2)(b) of our Constitution have raised a debate over by-elections in Singapore, particularly regarding the Prime Minister’s discretion on whether and when to call a by-election when a Parliament seat is vacant. On one side there are arguments such as NMP Eugene Tan’s, which suggests that by-elections should be called within in reasonable time. The opposing argument is that Singapore has chosen a model of party and not individual representation, under which the ruling party determines the electoral agenda. MP Hri Kumar Nair SC has made this argument.

First, the legal technicalities. The PM’s discretion arises from Article 49(1) of the Constitution provides that vacancies “shall” be filled in accordance with the “law relating to Parliamentary elections”. This is the Parliamentary Elections Act, section 24(1) of which states that “for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.” The President acts by default on the advice of the Prime Minister in areas where he has no express constitutional discretion. This being one of those areas, the Prime Minister has the sole final say on the issuance of writs for by-elections.

Professor Kevin Tan has argued that this is not an absolute discretion in that the Prime Minister must call for a by-election in case of a vacancy, because of the mandatory language of Article 49(1) (“shall be filled”) and of section 24(1) (“the President shall issue writs”). This, of course, does not remove the problem that no time limit is given. The PM can call a by-election at any time or, for that matter, not call one at all and wait till the next General Election, since Article 49(1) only requires that the seat be filled by an “election”, which can be a General Election.

NMP Eugene Tan in the article cited above also argues that a by-election should be called within a reasonable time or that reasons should at least be given if one is not called. One way of advancing this argument is through section 52 of the Interpretation Act which states that if no time is prescribed within which anything shall be done (as is the case in section 24(1) of the Parliamentary Elections Act), “that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”

More importantly, however, are NMP Tan’s arguments that leaving a constituency of 25000 voters without an MP in Parliament for an extended time - about 4.5 years in this case for Hougang, if no by-election is called - would undermine an inclusive and representative democracy.

MP Hri Kumar Nair countered that Singapore chose a party-based model of representative democracy, evidenced by Article 46(2)(b), which was introduced to avoid the type of party-switching that happened in the Legislative Assembly in 1961, where 13 PAP defectors almost stole the party’s hard-won majority. In this model, individual MPs cannot change Parliament’s composition or even the Government. This purpose would be defeated if they could still do so by forcing by-elections at any time. This is in contrast with Malaysia, where defections and by-elections often draw national attention.

There are a few questions that the PM’s discretion raises, however.

1) What if the seat is vacated by an independent MP? There will be no party to take care of the constituency as the Workers’ Party is currently doing for Hougang, and no party to represent the constituency’s interests in Parliament.

2) What if the seat is vacated by a sole opposition MP such as Mr Low Thia Khiang from 2006-2011? The constituency would have no proxy representation in Parliament as Hougang residents sort of have now in the other WP MPs. Surely it also cannot be right for voters to be covered by unelected party officials.

3) What if the seat is vacated by a minority MP in a GRC? The GRC system was implemented to ensure minority representation in Parliament. It would be a mockery of the system if minority representation is suddenly unimportant when a seat is vacated.

4) What if the vacant seat(s) affect the Government’s mandate? Consider this hypothetical scenario: the PAP has 44 seats in Parliament, the WP has 43. The PAP forms the Government. Two PAP MPs defect from the PAP and have to resign their seats. Now the WP forms the Government, because they have 43 seats to the PAP’s 42. The PAP is confident of winning the two seats back in the by-election and reclaiming power. But the WP Prime Minister, knowing full well his party cannot win, exercises his discretion and refuses to call a by-election and clings on to power for years. A constitutional crisis will likely ensue.

We can see that the PM’s discretion to call a by-election has the potential, however unlikely, to plunge the nation into a constitutional and political crisis. In the current, relatively stable political climate, some discretion prevents individual MPs from using resignations and defections as political tools. However, I propose a long maximum period for which a seat can be left vacant, say, one year, within which a by-election or general election must be held and the seat filled. This would ensure, without forgoing political stability, that all citizens are represented in Parliament, which is the minimum substance of a representative democracy.

Of the same cloth

Sun, 19 Feb 2012 17:41:00 +0800

There has been some discussion of late regarding the lack of diversity among students at the NUS Faculty of Law. The new dean is leading a review of admission procedures that aims to broaden the range of backgrounds of future law students. While still in its early stages, the review has sparked off a debate in the Straits Times Forum between two general camps: the strict results-based meritocracy camp (see here) and the opposing diversity camp which argues that results are influenced by wealth and do not reflect true merit (see here, here, here, here and here). I count myself part of the latter school of thought. In this post I will explore the possible reasons for the law school student profile and look at possible ways forward.

There can be little doubt that NUS law students mostly studied at the same JCs, and as Mr Subhas Anandan has observed, that we mostly come from similar socio-economic backgrounds. After almost four years at the school, a few clear observations can be made. I hope no one finds them offensive; I think these observations are abundantly obvious, and I do not make any value judgment about these facts. First, law students generally have wealthier backgrounds than average Singaporeans. This can easily be assumed based on the type of housing most of my peers (and I) live in. Secondly, mother tongue fluency and mastery is doubtful among a fairly large number. This is worrying when we consider the important role of representation lawyers play. There are further observations about the over- and under-representation of certain races and religions, but I will play safe and avoid them here.

This profile is a direct result of the fact that the Singapore legal system operates almost entirely in English - statutes, cases, hearings, pleadings, affidavits are all only in English, along with the vast majority of contracts and commercial work. This, in turn, is due partly to Singapore’s colonial legacy and partly to Singapore’s political choice to use English as the language of government, administration and education.

There is therefore a gap that arises between Singapore law and the social context in which it operates: while Singapore society is a diverse multilingual and multicultural fabric, the law is a monolingual monolith that stretches and bends to accommodate the variety of traditions and customs (e.g., the Administration of Muslim Law Act, MPs can debate in any of the four official languages) but is not sufficiently plural to acknowledge the richness of our society.

This is reflected in the NUS law student profile: students who want to and can study law are naturally drawn, due to parental encouragement, admissions requirements and personal preferences, from a particular English-speaking milieu. These families tend to be wealthier than mother tongue-speaking families, whether due to inherited wealth from the colonial era when English-speaking locals worked for the colonial administration and dominated business or due to the economic gap created by the shutting down of vernacular schools and the merger/closure of Nantah, denying a generation of Chinese-educated students a university education in their own language.

So this is how things are now. And as they stand, I do not see any long term structural solution. The best people to negotiate an English legal system are people who are familiar and expert with the English language. These people will continue to hail from the same backgrounds. For now, I think the review of admission criteria is a good step to accelerate the diversification of law students and the legal profession. Some will argue that the proposed changes will undermine meritocracy. First, true meritocracy is an impossible dream: John who is shuttled to and from school and tuition and enrichment and gets homework help from his doctor/lawyer parents has a far better chance at A Levels or any “meritocratic” examination, through no merit of his own, than Jane who wakes up at 5 to drag her tired self to school and has no tuition and has to help with domestic chores and her brother’s homework. Nonetheless, I agree that any changes should simply change the type of recognized “merit” to benefit underrepresented student segments, without completely ignoring merit. I do not believe students should be blatantly favoured or disfavoured simply because they come from particular schools. Instead, I suggest emphasizing worthy academic criteria that are currently ignored.

One such criterium could be mother tongue proficiency. The job of a lawyer is essentially representative and communicative and it is important that lawyers are able to relate to and communicate with those they represent. In this regard I am particularly concerned about the poor mother tongue abilities of most law students, including myself. I would suggest that mother tongue results play a greater role in the admissions process, perhaps as a bonus trump card. Another way of diversifying the student profile without overt discrimination is to prioritise students of science and mathematics, who are under-represented in law school. This is partly because top science students tend towards medicine and science courses, and partly because of the heavy emphasis on GP/KI for law school admission, essay subjects at which science students are less trained.

With increased English literacy and proficiency, I think the narrow law student profile will gradually diversify. No doubt the academic requirements will mean that wealthier students who stay in wealthy areas with good schools and have parents who can afford the time and money to nurture their children academically will still have an edge. But once the language barriers erode and more and more Singaporean families converse in English at home and Singapore becomes a properly English-speaking country, we should see a broader range of students from different backgrounds who want to study law and meet the language requirements.

One ideal structural solution would be a genuinely multilingual legal system, if Singapore is truly sincere about multilingualism. In such a system (Canada, Ireland and the European Union are examples), laws would be promulgated in all official languages, having either equal authority or with one language having final authority, as is the case in Ireland. Court submissions and hearings can be made and conducted in any official language and all official documents are available with translations, at least upon request. The costs of such a system would of course be considerable, and it is probably too late and pointless for Singapore to embark on such a project now that most of the population is fairly comfortable with English. For now, the review is worth applauding.

Speak good English

Mon, 26 Dec 2011 02:32:00 +0800

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.

Finders keepers

Thu, 15 Dec 2011 16:30:00 +0800

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.

Inter alia

Mon, 05 Dec 2011 20:39:00 +0800

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?

Miniskirt

Sat, 03 Dec 2011 03:27:00 +0800

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.

Renunciation of citizenship

Fri, 02 Dec 2011 01:15:00 +0800

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).