LEX LOCI 2013

LEX LOCI 2013

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Foreword

It is a privilege to be asked in my sunset years to write a foreword to a law review which, in truth, stands on its own merits and does not need a foreword to speak for it.

Lex Loci has been published annually since its inaugural issue in 2006, about eight years after the UKSLSS was established. This is an achievement that speaks for itself. The annual effort in sourcing contributions from students in different law schools all over England to sustain the law review must be daunting. It would have required nothing less than wholehearted dedication by members of the editorial board.

Equally commendable, and especially with respect to this 2013 issue, is that the majority of the articles are concerned with current legal developments in Singapore that are still “hot� to the public and lawyers alike. They include such topics as (a) the regulation, standards and ethics of medical and aesthetic practice, (b) constitutional and social issues involving the gay community; (c) regulating the internet in the same way as the printed media; (d) criminalising HIV transmission; (e) the establishment of a third law school; (f) physician-assisted suicide; (g) marital rape immunity under the Penal Code; (h) medical negligence; (i) the mandatory and discretionary death penalty; (j) judicial deference to international arbitration; (m) lemon laws; and (n) financial reforms after Lehman. In addition to these articles, there are other articles covering the life of young lawyers in Singapore law firms, practice in small firms, and the oxymoronic idea of mandatory pro-bono.

All these articles deserve to be read for the views of our UK law students on these topics. The articles show that our UK law students have kept in touch with legal and other developments in Singapore and are keen to contribute to the discussion on these social, cultural and ethical issues, most of which are

contentious in a changing Singapore. The articles also show that some contributors favour less conservative solutions to some of these issues – consonant with the legal/philosophical values of many of the English law schools. There is even an ambitious jurisprudential article in which the author tries valiantly to squeeze a square peg into a round hole.

On the whole, the intellectual arguments in these articles are very high. I have enjoyed reading the articles.

According to the editors: “… the purpose of Lex Loci is to reflect the interest the community [of Singapore law students in the United Kingdom] has for Singaporean jurisprudence and developments in Singapore’s legal scene, and to make its own contribution to academic discussion in areas members are passionate about”.

This is a worthy purpose. Whether our students are studying in UK or elsewhere, they are still Singaporeans. Eventually they will come home and be able to contribute to Singapore’s progress and well-being as a nation. The lex loci of Lex Loci is not any foreign law but the law of Singapore and its embedded social, cultural, economic and political values.

The current issue of Lex Loci shows that the contributors care for the future of Singapore and the values its people should live by. It is usually the case that the law lags behind economic and social developments in society, especially one with an open market economy. You might say that in globalised world, even an island is no longer an island. For this reason, capable and responsible citizens should play an active role in making sure that the law meets the contemporary needs of society. And who reflects these values better than the new generation of citizens who has to live by them.

Lex Loci is therefore to be commended for playing two important roles in this respect - firstly, to provide a forum for our UK law students to express their the opinions on legal developments at home, and secondly, to disseminate them to a wider audience. It is important to know what our young intellectuals are thinking on social and cultural issues, even if their views are ahead of contemporary values in Singapore.

In this context, Lex Loci has a contribution to make in enabling our UK law students to express their views on how the law in the various fields of social and cultural interactions should develop to create a harmonious, progressive and stable Singapore. But – and this view should not be contentious – it is in the expression of a diversity of rational views, especially in a plural society, that brings forth the best solutions for progress to be achieved, and regress to be arrested.

I wish the UKSLSS and Lex Loci a bright future.

Chan Sek Keong

Editorial Foreword It is my sincerest pleasure to present you with Lex Loci 2013 - the annual United Kingdom Singapore Law Students Society (UKSLSS) Law Review. This is our eighth edition of the publication, which inaugural edition was published in 2006. This year, it is our tremendous privilege to have former Chief Justice Chan Sek Keong honour us with his patronage.

Lex Loci is a legal journal of exemplary writing by Singaporean law students in the United Kingdom. It reflects the prodigious interest our community has for the burgeoning jurisprudence and developments in Singapore’s thriving legal scene. In this edition, we delve into a myriad of prominent issues including, inter alia, the recent constitutional challenges and various aspects of medical law.

Apart from being an intellectual symposium, Lex Loci engages its reader through a series of interviews with a diverse group of legal minds: judicial official, senior practitioner, corporate counsel and law student. I am grateful to Mr Jordan Tan; Mr George Lim, SC; Miss Anne Choo; Mr Kenneth Koh; Mr Paul Ng; Mr Chan Hock Sen; and Mr Raymond Clement, for sharing their perceptive insights on their respective career paths. I also thank my contemporaries, Malcolm Ong; Kok Yee Keong; and Johannes Hadi, for the exposition of their unique law school experiences.

Recognition is due to our generous sponsors, without whom this journal would not be possible. It is my sincere hope that Lex Loci has reciprocated your abiding trust in us.

My involvement with this publication has been as humbling as it is rewarding. I extend immense gratitude to my fellow editors as well as authors, the quality of whose contributions has been nothing short of brilliant. It has been a highlight of my second year in the United Kingdom to serve our community alongside the Executive Committee, who I have grown to cherish as valued companions. To my peers who read this journal with inspiration, I urge you to follow in our footsteps and partake in this endeavour next year.

I trust that you will enjoy this journal as much as I do.

Theodore Heng Theodore Heng Editor-in-Chief, Lex Loci

Editorial Committee

from left to right: Zachary Tan, Jerrold Yam, Cheryl Aiden Teo, Andre Cyrus Sim, Theodore Heng, Tania Teng, Stephanie Chew, Joshua Oeij, Kyle Koh

Editorial Committee Theodore Heng University of Bristol editor-in-chief

Theodore revels in project management. He has collaborated with different sponsors in coordinating a variety of career events, competitions, social congregations and publications. In the coming academic year, he will be embarking on a marketing campaign for Thomson Reuters. Lex Loci remains his greatest pride yet.

Stephanie Chew University College of London chief sub-editor When unoccupied by law school (rarely), Stephanie enjoys theatre and travel. Having spent her summer in terrains as varied as the Swiss Alps and the Mojave desert, she is nonetheless glad to be back in sunny Singapore.

Andre Cyrus Sim University College of London

deputy editor

A keen thinker who enjoys working with people, Andre has immensely enjoyed his part in bringing the Lex Loci 2013 from its abstract conception to its printed fruition. In his leisure time, Andre volunteers with his university and appreciates the occasional chess game. His analyses are showcased in the publication, alongside those of several writers whose articles he has managed and reviewed.

Jerrold Yam University College of London deputy editor

When not reading law at UCL, Jerrold masquerades as the author of two poetry collections, Scattered Vertebrae (2013) and Chasing Curtained Suns (2012). His poems have been dismembered in Singapore classrooms. He will try to convince aspiring writers to be lawyers as featured author at this year’s Singapore Writers Festival.

Joshua Oeij London School of Economics deputy editor

Joshua recently received an LL.B degree with First Class Honours from the London School of Economics and Political Science (LSE). He writes extensively and his articles have been published in the Lex Loci 2012 and 2013 as well as the LSE Students’ Union Law Journal (The Obiter 2012/2013).

Cheryl Aiden Teo University of Bristol deputy editor (contents & layout)

An aspiring street photographer, when not busy putting in the hours for university, Cheryl also loves reading, baking and watching countless videos on TED.com. Not one to shy away from new experiences, Cheryl has tried everything from brewing coffee in an independent cafĂŠ to living and working alone in Hong Kong.

Zachary Tan University of Manchester deputy editor (contents & layout)

Having spent a couple of grueling months in the publishing industry, Zachary is no stranger to putting a publication together. When not writing legal articles or writing about himself in third person, he enjoys taking photographs of people. His portraits accompany the features on lawyers in Singapore as well as the ones you see on this spread.

Kyle Koh University College of London deputy editor (features)

Kyle is fond of argument. The Editorial Committee is quite certain of this. During the term, he indulges this passion through mooting, debating and negotiations.

Otherwise he is a driving, SCUBA diving and photography enthusiast, and especially loves doing all three during his travels.

Tania Teng University of Birmingham deputy editor (features)

Tania is an economics graduate from the Singapore Management University, and is currently pursuing a second degree in law. In her own time, she derives great satisfaction from piano playing, challenging herself through musical improvisations. At other times, she loves being in the great outdoors and travel photography.

President’s Message It is with great pleasure that I present you with Lex Loci, our Society’s annual legal journal which showcases the best academic contributions our members have to offer.

Already in our eighth year of publication, Lex Loci has grown from strength to strength – only because of the enormity of thought and time our members have put into the Review. This year, it is our honour and privilege to have the patronage of former Chief Justice Chan Sek Keong.

Lex Loci reflects not only the tremendous interest our community has for the burgeoning and distinctively Singaporean jurisprudence and legal sector, but also for issues that are close to the heart. This year’s edition is testament to the fact that law is, and always will be close to the issues, principles, and ideals that matter to us (even if legal philosophers might suggest I am taking this for granted). Lex Loci has always been one of the highlights of our Society’s work as we seek to ameliorate the challenge of entering the legal sector; to give members more career opportunities and information to better assess and secure their choices; and to prepare them for the challenging but fulfilling time ahead.

The articles in this year’s Lex Loci go far beyond simple accounts of utility and freedom maximisation in addressing issues regarding conduct, regulation, and social mores.

Besides being an intellectual mirror of these ideas and arguments, we have also remembered to deal with a question that always lurks around the corner in law school – where will I go after this? In this respect, I would like to express my gratitude to the practitioners who have been so kind as to give us a glimpse of life in their chosen areas of practise: Mr Chan Hock Sen, Miss Anne Choo, Mr Raymond Clement, Mr Kenneth Koh, Mr George Lim, SC, and Mr Jordan Tan – your insights are nothing short of invaluable, and insightful.

This year has been a hectic, but very fulfilling year. We have hosted a visit by the Honourable the Chief Justice Sundaresh Menon to London, visits to Singapore’s top legal firms, the Singapore Legal Forum 2013, expanded networking opportunities with the Inaugural Ball as one of our initiatives, and published this Lex Loci. These were just some of the highlights of the year.

Seeing this publication in my hands, and ultimately yours, has been an immeasurably rewarding, and humbling experience. The success of this publication is made possible only by the work of the Editorial Committee, led by by Editor-In-Chief, Theodore Heng, and their outstanding team of writers. As a former member of the Editorial Committee myself, I understand the innumerable hours and long walls of text that have seemed insurmountable, only to be broken down and served in such a palatable and alacritous form – it is an amazing achievement. I am humbled by the excellence of your work, and would like to thank you.

It has also been my honour and privilege to work alongside my colleagues on the Executive Committee. I do not exaggerate when I say that working with them has humbled and inspired me to no end, and gained me an invaluable and joyous fellowship. I would highly encourage my fellow peers in the community to take up the mantle as we step down – you will not regret it.

I would also like to express our immense gratitude to our inaugural Patron, the former Chief Justice Chan Sek Keong, who in his retirement, has shown us a shining example of how to read, reflect, consider, and express our opinions critically – the bread and butter of the law – as he read through every single one of the articles. I am, as we all are, humbled by your magnanimity and ethic. Thank you.

Last, but not least, I would also like to extend our sincere gratitude to our generous sponsors, without which this journal and the Society’s work would not be possible. It is my hope that the Society will continue to grow from strength to strength, with you.

I hope you will enjoy reading this journal as much as I have, and I wish you nothing but the very best in the years to come. It has been my honour serving you as President.

Ian Ernst Chai President, UKSLSS

Executive Committee

from left to right: Tan Jin Wei, Vice-President (Marketing) Meera Rajah, Vice-President (Secretary) Ian Ernst Chai, President Theodore Heng, Vice-President (Editorial) Sheryl Koh, Vice-President (Public Relations) Clemence Kng, Vice-President (Treasurer)

contents Regulating Online Pornography Joshua Oeij

1

Trust Me, I’m a Professional Andre Cyrus Sim

6

Life of a Judicial Officer Kyle Koh

13

Don’t Judge a Book by its Face Jerrold Yam

17

Small is where it’s At Kyle Koh

21

A Matter of Life & Death I Stephanie Chew

28

A Matter of Life & Death II Theodore Heng

34

LEX LOCI 2013 43

International Arbitration Hub Goh Ee Ling

47

Regulating Beauty Cheryl Aiden Teo

56

Criminalising HIV Transmission Zachary Tan

60

Medical Negligence Vera Kong

67

Marital Rape: an anachronistic defence?

Tan Tian Hui

73

Legitimate Authority & Consent Joshua Oeij

80

To Infinity & Beyond Tania Teng

contents The Skeleton in the Closet Wong Pei Ting

83

Coming out of the Constitutional Closet Jerrold Yam

88

Lawyers in the House Kyle Koh

93

The Oxymoron of Mandatory Pro-Bono Tania Teng

96

Exposing Others to Risk: is it a form of harm?

Joshua Heng

99

House Rules for the Internet Andre Cyrus Sim

107

LEX LOCI 2013 113

The Imperfect Saviour Kyle Koh

118

Revisions to the Mandatory Death Penalty Phang Cun Kuang

125

Lemon Laws in Singapore: An Assessment Shenn Tan

131

Policing Organ Donation Policies Meera Rajah

144

The Lehman Aftermath Samuel Pang

156

Law Students with Lives Tania Teng

161

Responding to Recent Developments University Representatives

It’s what we do, because we love doing it.

What about you?

— RAJAH & TANN LLP RECRUITMENT

1

REGULATING ONLINE PORNOGRAPHY The invention of the Internet and subsequent phenomenon of digitisation has brought about many challenges for traditional lawmakers all over the globe. This essay analyses the regulatory response to the digitisation of to actual and pseudo child pornography, but questionable when applied to virtual and extreme pornography.

by Joshua Oeij

London School of Economics Illustration by Andrej Troha

INTRODUCTION The invention of the Internet and subsequent phenomenon of digitisation has brought about many challenges for traditional lawmakers all over the globe. Digitisation has affected areas of law ranging from intellectual property to data protection. Unsurprisingly, digitisation has also transformed the way erotica and pornography is produced, distributed and consumed. Even before the widespread use of personal computers and the Internet, regulation of pornography was already a contentious and controversial issue. However, recently enacted regulations considered in the context of today’s more liberal social standards appear to be a draconian response – which threatens fundamental rights. At the outset, this invites us to examine the law applicable to the distribution of pornographic materials. However, as this essay will show, the regime applicable to distribution has been rendered largely impotent and the production/distribution of such materials is now mostly deregulated1. Therefore this essay will analyse the alternative regulatory response to the digitisation of pornography and argue that the response is clearly justified with regard to actual and pseudo child pornography but questionable when applied to virtual and extreme pornography.

FROM THE PHYSICAL TO DIGITAL WORLD: REGULATION OF THE PRODUCTION AND DISTRIBUTION OF PORNOGRAPHIC MATERIALS Pornography is defined as material produced solely or principally for the purpose of sexual arousal2. Pornography may be indecent, however only obscene content is prohibited. The standard of obscenity has progressively evolved as society has become more liberal and pluralistic. Initially, the UK common law standard dealt with such materials through the ‘Hicklin test’3. This was a relatively strict standard, and many literary works (books during that time) were banned from production. However after the enactment of the Obscene Publications Act (OPA) in 1959, section 1 Andrew Murray, Information Technology Law (1st edn, OUP 2010) 368 2 Criminal Justice and Immigration Act 2008, s 63(3) 3 R v Hicklin (1868) LR 3 QB 360

1(1) of the Act relaxed the Hicklin standard. The modification made the test subjective, directing the jury to consider if the content would deprave and corrupt persons likely to see the content rather than vulnerable groups such as children4.

This control on domestic production of obscene/ pornographic materials was further strengthened by a ban on foreign importation of obscene materials under s.42 of the Customs Consolidation Act 1876. The combined effect of regulated domestic production, tight border controls and limited licensing ensured that authorities were able to suppress and control the distribution and hence influence the market for obscene materials.

It should be noted that while closely monitored in accordance with prevailing community standards through the modified Hicklin test, ‘mainstream’ pornography was/is available in licensed sex shops but not by mail order5. In fact, far from being outlawed, since the decision in ex parte British board of Film Classification [2000]6, the number of R18 and adult movies has increased dramatically.

However, in today’s context, the above regime is no longer adequate. Once again, in the words of Barlow, the borderless nature of the Internet has removed the ‘bottle’ which used to ‘protect the wine’7. The UK authorities can no longer enforce any custom controls since such materials (more accurately, data) no longer require a physical carriage. Furthermore, the production, uploading and hosting of such materials may be (and is more often than not) conducted in another jurisdiction.

In fact, because of the borderless nature of the Internet, decisions from the United States (US) have heavily impacted the UK’s regulatory regime.

The combined effect of Miller8, Pope9 and Reno10 has abolished UK’s local community standard in regulating production of obscene material and granted First Amendment Rights pornographic content hosted in the US. It should be noted that the Miller/Pope standard is far more permissible than the UK standard. In essence, the national 4 ‘Those whose minds are open to immoral influences’ 5 Video Recordings Act 1984, s 12 6 R v Video Appeals Committee of British Board of Film Classifications, ex parte British Board of Film Classification [2000] EWHC Admin 341 7 John Perry Barlow, The Economy of Ideas: Selling Wine Without Bottles on the Global Net (1992) 8 Miller v California. 413 US 15 (1973) 9 Pope v Illinois 481 US 497 (1987) 10 ACLU v Reno 929 F Supp 824 (1996)

standard of obscenity in the US is now that of the state of California. For example, while currently illegal to possess bestiality related material under s63 (7)(d) of the Criminal Justice and Immigration Act (CJIA) 2008, it is not considered obscene under local Californian community standards as shown in the US v Thomas11 case. Hence the production and distribution of obscene materials is now largely deregulated and is in fact, by circumstance, generally ineffective. However, the previous statement must be qualified, as certain organisations and filtering mechanisms in the UK such as the Internet Watch Foundation (IWF) and Cleanfeed could be argued to serve a similar function in regulating the supply of illegal material – they provide a blanket ban by preventing access and hence proliferation of banned content within the UK. This will be discussed in the third section of the essay.

PORNOGRAPHY ON THE INTERNET Nair points out that the Internet has had two significant effects on pornography12. First, it has made it convenient and free to access. Second, from a regulatory perspective, due to de facto deregulation on the supply side, the range of material available has become increasingly varied.

Furthermore, advances in technology have resulted in the growth of a genre of pornography, namely pseudo and virtual child pornography.

Pseudo pornography may for example, involve morphing images of real adults with that of children, creating a new image. Virtual pornography may involve depictions of children through computer generated images and cartoons.

While segments of society may still find normal adult pornography distasteful, there is little contention that such material should be accepted in a free and liberal society. However, there are strong and obvious reasons for outlawing actual child pornography. As Murray points out, child abuse images are ‘always obscene no matter which community values apply’13. The rationale is quite straightforward: to produce a child abuse image, 11 US v Thomas. 74 F 3d 701 (6th Cir. 1996) 12 Abhilash Nair, ‘Real porn pseudo: The regulatory road’ (2010) 24 IRLCT 3, 224 13 Andrew Murray, Information Technology Law (1st edn, OUP 2010) 369

a child must be abused14. In other words, the production of such an image causes ‘direct harm’ to a child. While it has always been a priority to prevent the exploitation of children15, shocking discoveries revealed through Operation Ore and high profile cases like the Coutts criminal trial led to public calls for executive and legislative action.

Since the UK government could no longer police the supply side of such materials, the most efficient and economical way to address this issue was to expand the criminal law so that possession of such materials was illegal. Shifting criminal liability from the supply to demand side has resulted in the possibility of imprisonment for an end-user caught in possession of such illegal material. This policy acts as an effective tool to deter people from seeking the content in question, thereby reducing demand and possibly diminishing the trade altogether. However, is the heavy-handed policy of criminalising simple possession of simulated child/adult extreme pornography overzealous and draconian? Since criminal law is the most serious public punishment a state can administer, it is debatable as to whether it should be utilised as a sanction when direct harm is not conclusively established. Thus, we shall now critically analyse the regulatory response with regard to all forms of child pornography as well as extreme pornography.

ANALYSIS OF REGULATORY RESPONSE The UK’s regulatory response employs a mix of legislation and self-regulation to tackle illegal content on the Internet. We will first begin with the self-regulation mechanism that is administered through the IWF as well as the co-operation of Internet Service Providers (ISPs). As discussed before, these mechanisms target the supply side by either removing illegal content at its source or blocking the URL entirely. First, the notice and take down mechanism allows the public to report illegal content such as child abuse images and criminally obscene adult content. If assessed to be illegal, notice is then sent to the hosting provider to remove the content at source. This mechanism, which employs code to affect the design and architecture of the Internet has been particularly 14 15

ibid Council of Europe Convention on Cybercrime, art 9

effective16 as child abuse content hosted in the UK has fallen from 18% in 1997 to 1% in 200317.

Second, the IWF also decides which specific URLS are on a blacklist which is updated twice a day.

This blacklist is enforced with co-operation with UK ISPs which use the Cleanfeed filtering system to deny access to the specific URLs. The biggest criticism of the IWF and Cleanfeed has to do with its accountability and transparency. The average end-user would be unaware that Cleanfeed has actually blocked his access since it would appear as if the URL was simply ‘not found’. Furthermore, the blacklist of sites kept by IWF is not released to the public. Thus as Murray notes, Wikipedia pages such as that of the band ‘Scorpions’18 could be blocked due to an album cover. Although highly controversial, such content may contain certain artistic elements. Hornle too points out that filtering is both under and over-inclusive and may block innocent images and miss out on obscene ones. Furthermore, with a plethora of available technologies such as person-to-person file sharing, encryption systems and proxy VPNs, one may question the ability of the IWF and Cleanfeed to effectively stop a person who actively seeks such abhorrent content. This creates a situation whereby the majority’s freedom of expression19 and right to private life20 is constrained because of a minority. However, these rights must be balanced with those of vulnerable parties. Since these initiatives have yielded tangible results and promising statistics alongside the fact that the harms of child abuse images are real and direct, the intervention appears justified. One may argue further that removing content at its source and reducing the accessibility to such material may deter and reduce the number of offenders or potential offenders from fueling such desires. If this prevents harm from materialising, it seems that although not perfect, a regulatory mechanism erring on the side of caution is certainly not draconian.

As we have established that real or actual child pornography contravenes the direct harm 16 Lawrence Lessig, Code and Other Laws of Cyberspace 17 Abhilash Nair, ‘Real porn and pseudo porn: The regulatory road’ (2010) 24 IRLCT 3, 225 18 Andrew Murray, Information Technology Law (1st edn, OUP 2010) 384 19 Article 10 ECHR 20 Article 8 ECHR

principle, the sanction under s.160 of the Criminal Justice Act 1988 is justified. Hence, this essay will no longer discuss this particular issue, as it is not in contention. This essay will proceed to examine the fairness of the simple offence of possession with regard to pseudo-child and virtual child pornography. It may be argued that pseudo-child images are artistic productions and that children might not directly be harmed. However, there are high indirect risks involved in the realistic depictions of such child-abuse. First, if the image of an actual child’s face is transposed onto an adult body and morphed to look younger, it would be extremely psychologically traumatising to the child. Such images or film sequences may also be used to groom or desensitise impressionable children into committing indecent acts. Finally, there is strong evidence connecting child abuse images and the act of abuse itself21. A study by Wolak, Mitchell and Finkelhor in 2003 showed that two-thirds of perpetrators arrested for Internet sex crimes against children also possessed child abuse images22. While it will be conceded that it is not definitive that a child must be harmed in the production process of a pseudo image, there remains the risk (albeit smaller) of potential harm of a large magnitude to a child. Furthermore, if the pseudo image is edited such that it appears no different from an actual child abuse image, there seems to be no substantive difference in content.

If such images are used to develop and feed such impulses, it seems that there exists no artistic or scientific value in protecting such content. In fact, allowing the proliferation of such materials would amount to ‘adding fuel on the fire’23. At this point, it should be noted that freedom of expression and the right to private life are qualified rights. Thus, they can be proportionately curtailed for wider legitimate aims such as crime prevention and the protection of others’ rights.

The criminalisation of virtual images brings about a stronger challenge to the justificatory reasons behind the law. The Coroners and Justice Act 2009 21 C. Bagley & K. King, Child Sexual Abuse (1989) 22 J Wolak, K Mitchell & D Finkelhor, Interest Sex Crimes Against Minors: The Response of Law Enforcement, Crimes against Children Research Center (2003) http://www.unh.edu/ccrc/pdf/jvq/CV70.pdf accessed 4 March 2013 23 Home Office, ‘Consultation: On the possession of extreme pornographic material: Summary of responses and next steps’ (August 2006) <www.parliament.uk/briefing-papers/SN05078.pdf> accessed 4 February 2013

makes possession of such content punishable by up to three years imprisonment24. Virtual images involve no actual harm to children and the depiction of the child need not ‘appear to be real’ (e.g.

Manga). It has been argued that these are artistic expressions. However, a stronger argument in support of this might be that this offers a ‘victimless and beneficial outlet’ for inappropriate feelings of potential offender – lowering their impulses. Even if one finds these arguments unconvincing, it seems excessively harsh to criminalise or imprison someone for possession. Although such material may reinforce inappropriate desires toward children, it would surely be disproportionate to criminalise a person for an inchoate offence. This comes dangerously close to criminalising ‘thought crimes’ and imposing duties on people to ‘think good’. As Mills describes, ‘power can only be exercised over another member of the community if it prevents harm to others’25. Likewise, Hart makes the distinction between an ‘affront to public decency and private acts which are merely immoral according to conventional morality’26.

However, it should be noted that the Coroners and Justice Act (CJA) 2009 emphasises that the image must be pornographic and grossly offensive with a principal focus on a child’s genitals/anal region or portray certain explicitly graphic sexual acts. Hence, the regulations are still focused on unhealthy attitudes toward children which may manifest in reality. Whether the law is considered draconian in this area depends on the strength of the evidence/correlation of consumption and harm.

at large27. Second, many of these productions are simply acted out by paid professional actors, and even if performed privately at home by individuals, these acts are consented to. Although such material may appear objectionable to the majority, no actual harm is caused and consent is also present. Hence, a criminal sanction may not be warranted. As discussed above, an affront to public morals does not necessitate that such behaviour is intolerable.

CONCLUSION As this essay has shown, a criminal offence is a serious sanction and should only be reserved as punishment for deplorable acts which cause or carry a real risk of harm. While shifting liability to the end-user provides a convenient and cost efficient mechanism to police and suppress the consumption of such obscene material, it is only justified in the areas of actual and pseudo child abuse. The justification for virtual pornography is weakened as even though it carries a risk of indirect harm, no conclusive evidence has been provided. Finally, although extreme pornography may be extremely disturbing, there is little or no evidence linking it to causing harm to the viewers’ psyche or society. Upon closer analysis, criminalising possession of such material without establishing that it causes harm infringes upon an individual’s autonomy, and hence his right to freedom of expression and right to having his private life free from executive interference.

Finally, and perhaps most controversially, extreme adult pornography is also subject to the simple offence of possession under the CJIA 2008. S.63(7) of the CJIA 2008 covers images ranging from activities that explicitly and realistic portray acts that may be life threatening, cause serious injury to a person’s anus, breasts or genitals, necrophilia or bestiality. Two important factors mount a strong challenge against criminalising such material. First, there is negligible risk of harm, whether direct or indirect, to children. Furthermore, there is little or no conclusive evidence that consumption of extreme pornography harms the viewer or society 24 25 26

The Coroners and Justice Act 2009, s 62(1) JS Mill fn 84 p.78 HLA Hart, Law, Liberty and Morality (2nd edn, UOP 1963) 45

27 Abhilash Nair, ‘Real porn and pseudo porn: The regulatory road’ (2010) 24 IRLCT 3, 230

TRUST ME, I’M A PROFESSIONAL The regulatory framework of professional conduct and ethics in the medical profession is statutorily enshrined in the Medical Registration Act. While the current framework is largely appropriate, it is not withmechanism.

by Andre Cyrus Sim

University College London

PREAMBLE The importance of the medical profession is not in doubt. They treat the sick, care for the dying and accompany those drawing their last breaths. But along with these skills, there also arise duties – duties not only of honour, but also of law. The regulatory framework for professional conduct and ethics in the medical profession is statutorily enshrined in the Medical Registration Act1, and it will be reasoned that the current framework is mostly appropriate in its emphasis on self-regulation.

1

Medical Registration Act (Chapter 174), 2004 Revised Edition

However, it is not without its flaws – the less-thaneffective manner in which it incorporates legal expertise into the disciplinary process and the uneasy connection between the profession’s selfregulatory mechanism and the court’s ultimate authority both invite a convincing case for further fine-tuning of this mechanism.

THE CURRENT REGULATORY FRAMEWORK The current regulatory framework is four-pronged, comprising the Singapore Medical Council (SMC), which is this article’s focus, the Singapore Medical

Association (SMA), the Ministry of Health (MOH) and the hospitals.

THE DISCIPLINARY PROCESS UNDER THE MEDICAL REGISTRATION ACT

The SMA was established by the profession itself – it aims to maintain the honour of the medical profession and to support a higher standard of medical ethics and conduct. Although the SMA plays the role of mediator in many complaint cases, its powers are merely persuasive2 and not of an investigative or punitive nature3. Neither does the MOH have any direct disciplinary control over members of the medical profession – it usually refers complaints to the SMA or SMC, and is more concerned with regulating the practice of medical establishments in terms of licensing, quality and appropriateness of services, rather than individual practitioners4. Although the hospitals are obliged by the Private Hospitals and Medical Clinics Act (Cap 248) to set up quality assurance programmes, none of these programmes are governed by any standard guidelines either5.

The SMC was established under the Medical Registration Act (MRA), one of its functions being ‘to determine and regulate the conduct and ethics of the registered medical practitioners’, and also their standards of practice and competence (s.

5(f), MRA). Under s. 58(2)(2), they have powers to make regulations ‘regulating the professional practice, etiquette, conduct and discipline of registered medical practitioners’.

Given that none of these bodies have any direct control over medical practitioners, it is clear that there is an important need for the Singapore Medical Council to play a central role in regulating the conduct and ethics of the medical profession. No other body has this objective set out so clearly in its constitutive documents, nor the kind of investigative or punitive powers it has.

Of course, theoretically, there is nothing stopping the MOH from conducting its own investigations into complaints against medical practitioners.

However, in practice, this function is often best left to the SMC to carry out6 given that no other body possesses the same robust system of review it does.

2 K.Q. Yeo , Medico-Legal Responsibility in Singapore, 2000 3 F. Xavier, Disciplinary Processes in the Medical Profession, FOCUS, 2000-06 4 Ibid.

5 Ibid.

6 Ibid.

The SMC is the ‘teeth’ of regulation in the medical profession – under Part VII of the MRA, complaints may be lodged against registered medical practitioners, which are reviewed by an SMC Complaints Committee that may dismiss the matter, or order a formal inquiry by a Disciplinary Tribunal or Health Committee. While the Complaints Committee has significant powers under s. 49, MRA7, the real ‘bite’ lies with the Disciplinary Tribunals (and Health Committees) which may, upon finding the charges proved, remove or suspend the registered status of the practitioner concerned, fine, censure or ‘make such other order as the Disciplinary Tribunal thinks fit’ (s. 53(2)(h), MRA).

Notably, both the SMC and the registered medical practitioner concerned has a right of appeal against an order by a Disciplinary Tribunal to the High Court within 30 days of its determination.

Even the complainant may apply to a Review Committee to direct the Medical Council to file an appeal if he disagrees with the SMC’s decision not to do so.

As a statutory mechanism with powers of sanction, the SMC under the MRA is a robust regulatory tool of professional ethics and conduct. This article will examine its key features in greater detail, and reason that this model is largely appropriate in the current medico-legal, socio-ethical climate of the profession, although the incorporation of legal expertise and uneasy connection between two disciplinary systems does leave room for improvement.

7 These range from issuing letters of advice or warnings, to ordering medical or psychiatric treatment or further medical training (s. 49, MRA)

THE APPROPRIATENESS OF THE SELFREGULATORY MODEL The objectives of the current disciplinary framework are to determine and regulate the conduct and ethics of registered medical practitioners (s. 5(f) MRA), among others. A key feature of this framework is self-regulation of the medical profession – the SMC comprises entirely of registered medical practitioners (s. 4 MRA), while the Complaints Panel (s. 38), Complaints Committee (s. 40), and Disciplinary Tribunal (s.

50) always retain a majority element of registered medical practitioners.

It may be said that the self-regulation of ethics and conduct under the MRA is indeed the best way forward in the medical profession for several reasons. Firstly, because the field is very specialized and the standards of acceptable behaviour can often be blurred at its edges, the line is best drawn by persons who practise in the field itself. The need for any regulation at all arises from the glaring asymmetry of information between practitioners and consumers due to the specialized nature of the profession’s knowledge and practices – that same asymmetry makes the profession, as opposed to court judges, best placed to determine what those standards are. During the course of their practice, practitioners have to make actual value judgments with real consequences – be it a decision to practise defensive medicine8 or choosing not to provide expensive non-essential treatment. Such real-life decisions cannot be easily substituted by even a studious judicial analysis of medical literature and expert witness reports.

Presumably government agencies like the MOH are better placed closer to the ground to appreciate these difficulties since they regularly consult and work with such practitioners. However, ultimately, neither academic analysis nor empirical feedback provides the sort of nuanced perspective that comes with actual medical practice.

It thus appears that such issues of medical ethics and standards of professional conduct should surely be determined internally by the profession, and it would therefore only be 8 This refers to situations where measures are taken primarily to avoid malpractice liability, rather than to benefit the best interests of the patient.

fitting that the current model provides well for a judicial deference to the SMC - under Part VII and s. 55(11), the Complaints Committees and Disciplinary Tribunals have jurisdiction to hear complaint cases, and High Court must generally accept any finding by the Disciplinary Tribunal relating to such matters as final and conclusive9.

Further, an internal determination of behavioural and ethical standards will typically have more moral and persuasive force among practitioners than an externally imposed one. Members will usually more readily accept practices approved by peers who face the same situation and value judgments as themselves, as it provides a form of assurance that their own difficulties and interests are appreciated fully. Here, the rebellion of the British medical profession in the 1970s against the General Medical Council in the United Kingdom is instructive - several thousand doctors refused to pay the GMC’s newly-imposed retention fees on the basis that there should be ‘no taxation without representation’; they contended that their representation and interests were being denied in a Council with less than a quarter of its membership elected by practitioners themselves10. This reminds us that it will take substantial representation, if not outright autonomy, for a learned community to be satisfied that the standards asked for are legitimate, fair to their interests and worthy of being followed at all. If so, then it would be highly desirable that the SMC takes ownership of, and has a stake in, these standards of ethics and conduct by setting them out themselves.

This should be so even if such standards are already legally designated under the MRA or by way of statutory interpretation, because such documents constitute the profession’s own recognition and enshrinement of those standards. Already the SMC’s ‘Ethical Code and Ethical Guidelines’11 represents a desirable first step behind which the community can rally, and it is submitted that the continued maintenance of these documents is by and large desirable, although it has posed certain difficulties in its consistency with its legal 9 The exception being that such a finding is ‘unsafe, unreasonable or contrary to the evidence’ (s. 55(11), MRA) 10 M. Stacey, Public Policy and Administration, Volume 4, No. 1, 1989 11 Singapore Medical Council website at ‘www.healthprofessionals.gov.sg/content/hprof/smc/en/topnav/guidelines.html’

counterparts, which will be discussed later.

Notably, although the SMC structurally appears to face the same pitfalls as the old British GMC, with a majority of its members appointed by the Government or publicly owned medical schools (s.

4, MRA), the perception of under-representation is more of an empirical, rather than necessary, conclusion. Thus far, there is little indication of domestic discontent similar to that with the early British GMC, and it is submitted that continued emphasis on procedural self-regulation under Part VII, MRA and consultation will do well to overcome this structural pitfall.

Moreover, it may also be said that only by taking responsibility for its own disciplinary process, can the profession continually ensure that its standards remain suited to its conscience and to public expectations. One of the distinguishing features of a learned profession is said to be the capacity for self-reflection12, and this is best achieved by allowing the profession to go through its own process of investigation, consultation, decision and sanction. As new practices and procedures are adopted, participation in the disciplinary process ensures that the profession has to continually reflect on its own values, reconcile them with their current standards and reach a consensus on whether to affirm or develop those standards13.

This means that every disciplinary decision will be a continual affirmation or development of the medical profession’s values and standards. Ethics and codes of conduct are ‘living instruments’ that develop as new practices arise and as public expectations change.

With the increase in the availability of aesthetic treatment, and the recent media limelight that has included public calls for greater transparency, the medical community’s in-depth participation in its own disciplinary process by way of the SMC and Disciplinary Tribunals is now more important than ever and should be maintained if they are to 12 M. Cordner, J. H. Thomson, D. Pluckhahn, Good Medical Practice: Professionalism, Ethics and Law, p. 5, 13 The difference between ‘values’ and ‘standards’ is that the former typically embodies ideals, while the latter defines minimum benchmarks to be met. For example, the SMA’s stated belief is ‘Service before Self ’ (http://www.sma.org.sg/publicinterest/), but as a matter of regulatory standards, things are not that simple because the practitioners’ interests are often equally important depending on the medical treatment in question and public expectations. This means that standards may vary even as values are maintained.

be trusted to keep such standards in pace with the current medico-legal, socio-ethical climate and public expectations.

RECENT DEVELOPMENTS TO INCORPORATE LEGAL EXPERTISE In recent years, one of the most pertinent concerns with the self-regulatory model of the medical profession has been the sufficiency of legal expertise in disciplinary proceedings.

Parliament sought to address this by way of the Medical Registration (Amendment) Act 2010 (No. 1 of 2010) to allow senior legal practitioners to sit on Disciplinary Tribunals as chairpersons or members. Although the amendment involved much controversy at the time14, it is submitted that it is necessary to address a real need for legal expertise, despite concerns that this would be a ‘step backward for self-regulation’ and ‘an erosion of physician autonomy’15.

The need for legal expertise arises mainly from the quasi-criminal nature of the disciplinary process.

Because such proceedings are quasi-criminal in nature, principles and practices that ordinarily prevail in criminal trials as safeguards of due process should be adopted. This was judicially recognized in Low Chai Ling16, and indeed, because the Disciplinary Tribunal is entitled to regulate its own procedure17 without judicial supervision, it must surely fall to a legal mind on the panel to ensure that the Tribunal does not run afoul on various points of law. The legal principles on procedural fairness are not arbitrary or subjective concepts unique to the law, but sensible and transferable rules that promote fairness and justice in such tribunal proceedings. It would not, for example, achieve any deterrent or retributive effect to punish a practitioner retrospectively for treatments that were not against guidelines at the time18. It may even be said that such failures to observe the principles of natural justice are just as unattractive as the kind of unethical and professional misconduct that is the target of the SMC’s regulation.

14 M.K. Lim, More teeth to discipline errant doctors, Health Policy Monitor, Survey no. (15) 2010 15 Ibid.

16 Low Chai Ling v SMC [2012] SGHC 191 17 s. 51(1), MRA 18 As was the case in Low Chai Ling v SMC [2012] SGHC 191

Indeed, incorporating legal expertise is a necessary measure under the MRA because the High Court is the final stage of appeal19 for all complaint cases lodged with the SMC - all findings are therefore subject to judicial scrutiny and Tribunals will often require a legal mind to strengthen its reasoning and keep its procedures in line with due process.

Indeed, the overturning of verdicts due to failings such as those which characterized cases such as Low Chai Ling (the lack of particularization of charges; retrospective and selective enforcement) do little to maintain the confidence of the public in the profession. In forum letters20 dated in January 2013, the SMA had previously described the number of overturned verdicts as ‘disconcerting’.

Although the SMC rebutted that having had only three of 83 verdicts set aside by the High Court in the past five years was ‘not a disconcerting number’, it is submitted that the response was not quite adequate given that on closer inspection, only eleven cases of the 83 were actually appealed to the High Court, and of the eight already decided, having three set aside is no insignificant proportion. As the MOH has also recognized previously21, the fact that disciplinary hearings are not held in public does not help public perceptions either. Indeed, justice must not only be done, but also be seen to be done – it is therefore submitted that the Medical Registration (Amendment) Act 2010 (No. 1 of 2010) is a necessary refinement of this self-regulatory model in order to answer the need to strengthen the legal rigor of Disciplinary Tribunal proceedings and judgments, so that it may withstand the High Court’s scrutiny and maintain public confidence in the system.

However, the recent incorporation is not without its flaws either, and has been criticized for eroding the objective of self-regulation. Most notably, a legal practitioner can be appointed as a chairperson of the Disciplinary Tribunal (s. 50(1) (a) MRA). The protestations that came from the profession might be said to be rather natural, as it would be entirely feasible for a legal expert to make his legal perspective count by way of his voting rights, without being enabled to lead the whole inquiry itself. Nonetheless, the Disciplinary 19 s. 55(10), MRA 20 H.C. Lau, Very few verdicts gets overturned: SMC, Straits Times Forum Letter, 23 January 2013 21 Ministry of Health, Medical Registration (Amendment) Bill, MOH Circular CF 78:02/8, 2009

Tribunal continues to retain a majority element of medical practitioners, and in the case of an equality of votes with a non-medical chairperson, only medical practitioners will have voting rights so that most Tribunal decisions should continue to be made on an internal basis within the profession (s. 50(12) MRA).

The biggest caveat however, is that the SMC still has the power to appoint the chairperson and may therefore be expected to continue appointing medical practitioners to the post22. In some ways it is unfortunate that such a polarized ‘chair-ornothing’ approach was taken, and it is submitted that it would be perfectly sound as a matter of logical progression for the role of the legal assessor, who can currently only give legal advice when consulted, to be expanded so as to be a member of the Tribunal itself with voting rights. As the story of the old British GMC foretells, too drastic an intervention is apt to hamper cooperation, and it is submitted that a more modest step in appointing a legal practitioner as a non-chairperson member would have been much more acceptable and effective measure in infusing a legal perspective into the proceedings.

UNEASY CONNECTION BETWEEN TWO REGULATORY SYSTEMS The current two-system model under the MRA is rather unique, and at times has proved to be an uneasy connection between two different regulatory systems – the SMC and the courts.

The history of this model has seen inconsistencies between both systems, and this has presented much difficulty in achieving uniform regulation of the profession.

As previously noted, the constitutive responsibilities and powers of the SMC are set out not only in the MRA, but have also been set out as standards in the SMC’s own Ethical Code and Guidelines. Unsurprisingly, certain regulatory terms can be found in both documents (i.e. ‘misconduct’), and when this is the case, it is not in doubt that the final arbiter of what the regulations mean is the court – what the courts 22 M.K. Lim, Non-Medical Chair, Medical Disciplinary Tribunal?, Health Policy Monitor, Survey no. (14) 2009

interpret the MRA to mean is final, and to say otherwise would be akin to the ‘tail wagging the dog’23. Yet, it is not always clear whether both the SMC’s definitions and understanding of these terms entirely correspond with their judicial interpretation, and worryingly, there appears to be no common practice to ensure that they do.

For example, the term ‘professional misconduct’ is still defined in the SMC’s Ethical Code and Ethical Guidelines 2007, s. 5.4 as ‘infamous conduct in a professional respect’, within the meaning stated in Allison v General Council of Medical Education and Registration (1894). However, the court in Dr. Low Cze Hong v SMC [2008]24 had since dismissed it as unduly restrictive, in favour of embracing ‘a wider scope of conduct’. If present, such inconsistencies between the SMC guidelines and statutory interpretation raises several issues.

Firstly, it is prone to injustice as tribunals may continue to decide cases on the basis of out-dated understandings of the standards as judicially interpreted in the MRA. Secondly, it places the High Court in a difficult position as to how much deference, if not tolerance, it should show to a self-regulating body like the SMC. As to the first concern, presumably it might be said that in any event, such inconsistencies would be corrected at the High Court anyway. However, it is said to be an important statement of principle that we do not rely on appeals to the High Court to get it right the ‘second time around’, especially since such appeals involve further barriers to entry in terms of costs. This concern brings us back to the need for legal expertise on the panel, which should do well to remind other members of the correct legal position. Even if the legal practitioner’s words are ultimately only persuasive on the others, his input should at least ease the risk, actual or perceived, of systemic miscarriages of justice under out-dated definitions.

More importantly, even if the High Court has the legal power to correct such rulings, there is still the question of how it would bring itself around to correct such inconsistencies, in light of its own self-professed25 and legally required deference to the Disciplinary Tribunal. Under s. 55(11) MRA, the High Court must accept any finding 23 24 25

Dr. Low Cze Hong v SMC [2008] 3 SLR(R) 612 at [27] Ibid.

Ibid. at [42]

by the Disciplinary Tribunal relating to any issue of medical ethics or standards of professional conduct as final and conclusive, unless the finding is unsafe, unreasonable or contrary to the evidence.

It is submitted that in a case where a finding is made by a Disciplinary Tribunal based on its own definition which would not be made based on the courts’ definition, the High Court would come perilously close to making its own judgment on medical ethics and professional conduct in the process of finding the Tribunal’s verdict as unsafe or unreasonable. Simply put, it must judge the safe and reasonable range of findings on ethics and conduct before it can decide if the Tribunal’s decision lies outside that range.

Furthermore, it is not always readily obvious whether the gap between what the court thinks and what the Tribunal decided is wide enough to be ‘unsafe’ or ‘unreasonable’, both of which are rather high standards. Take for example, the situation where a doctor overcharges his patient by a certain amount, where the patient has already had the benefit of financial counselling. A Tribunal might acquit him of professional misconduct if it finds that the overcharging was not so gross as to be ‘infamous’. But because the patient had already received financial advice, it would not be readily apparent to a panel of judges that an acquittal is so unsafe or unreasonable that it should be rejected, even if the definition used was narrower than it should have been. Moreover, in cases such as these, it is questionable whether the precise definition, while relevant, is central and decisive at all to such nuanced value judgments.

In two recent cases for example, Dr. Eric Gan Keng Seng v SMC (2010) SGHC 325 and Dr. Eu Kong Weng Seng v SMC (2011) SGHC 68, it was not entirely clear that each case corresponded with Low Cze Hong v SMC’s understanding of professional misconduct. ‘Professional misconduct’ is said to be made out in a case where there has been ‘intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competency’. In Dr. Eric Gan Keng Seng however, it was not clear if the failure to attend and delay in diagnosis was deliberate, while in Dr. Eu Kong Weng Seng, the failure to obtain informed consent in spite of a valid consent form was neither a deliberate nor intentional departure

from the relevant standards26. Nonetheless, the High Court upheld both convictions by the Disciplinary Tribunal. This demonstrates that there is a very real possibility that the courts will defer to decisions of the Disciplinary Tribunal, even where there may have been inconsistencies in their understanding of the MRA. In some ways, this is not an unforeseeable consequence of the medical profession’s unique regulatory model. Connecting a self-regulatory system within the profession, with the judicial system outside of the profession is certainly no easy task. Moving forward, it is submitted that the SMC will do well to ensure efforts to continually maintain their internal guidelines and documents so as to stay in line with recent judicial decisions. In return, the courts will continue to show deference to their learned community, but maintain a watchful eye over the tribunal’s due process and legal standing.

CONCLUSION As a whole, the MRA’s emphasis on selfregulation has been sensible. At the same time, the government has also done well to respond to the pertinent needs for legal expertise on the panel, given that decisions of the Disciplinary Tribunal must ultimately withstand judicial scrutiny and should be able to do so in order to maintain public confidence. However, a more moderate approach might have been better advised, in terms of having non-chairperson legal practitioners sitting on Disciplinary Tribunals, so as to retain the emphasis on self-regulation.

Furthermore, the SMC must also continually ensure that they stay in line with recent judicial decisions, so as to avoid inconsistencies and achieve uniform regulation of the profession. Moving forward, it will take continued consultation with the public and the profession for the government to ensure the highest standards of ethics and conduct in the medical profession.

26 T. Thirumoorthy, Professional Misconduct – Reflections on the Proceedings of the Recent SMA Seminar, SMA News, December 2011

THE LIFE OF A JUDICIAL OFFICER JORDAN TAN graduated with an LL.B in Law from the National University of Singapore (NUS) and was awarded the Adrian Clark Memorial Medal and the Singapore Academy of Law Prize. He undertook his pupillage at Allen & Gledhill before joining the Legal Service as a Justices’ Law Clerk (JLC). In 2012, he received the Singapore Academy of Law Overseas Attachment Award and was attached to Fountain Court Chambers, a long established and leading set of commercial barristers’ chambers in London. Jordan is now an Assistant Registrar (AR) at the Supreme Court of Singapore.

by Kyle Koh

University College of London Photographed by Zachary Tan

Why did you choose to attend law school? Did you know from early on whether you wanted to become part of the legal system?

As early as in secondary school, I aspired to the legal profession. However, my decision to apply to law school was made at the eleventh hour, in my second year of National Service (NS). I was, in a sense, side-tracked by practical considerations. At the time, because of the dotcom boom, the internet- and technology-related fields were the most attractive and many of my peers sought admission into the computing or computer engineering faculties of the local universities. Then (and some might say that this is still the case) a legal career was regarded as one that paid reasonably well but which

brought with it a disproportionate amount of stress.

Head ruled over heart and having taken computing at “A” levels, I chose to enrol at the Computer Engineering Faculty at NUS. But, as things turned out, the two years in NS gave me some distance from my decision and perspective. In that time, I reflected on my choice and chose to read law instead. In a nutshell, although I had a passion for the law, I was temporarily distracted by practicalities but was swiftly put back on course.

Did you pursue any extracurricular activities in school?

Have these experiences been useful during your professional career?

I participated in several extracurricular activities in

law school. I wrote for a law school magazine, helped out in the freshman orientation camp and wrote some of the songs for the final year musical put up by the graduating class. That was a lot of fun. I also participated actively in mooting activities. I won a moot competition organised by one of the big four law firms and subsequently represented the NUS in two international moot competitions, one of which was the Philip C. Jessup International Law Moot Court Competition. Being an active mooter helped sharpen my mind in terms of legal analysis and argument. In addition, I greatly treasured being a part of the Jessup Moot alumni as this gave me many opportunities to learn from Singapore’s legal luminaries. I met my future pupil master, Mr Ang Cheng Hock, SC, in one of the practice rounds. The present Chief Justice, Sundaresh Menon and Attorney-General, Steven Chong, who were then in the private practice, judged my team in the final practice round. This was a tremendous privilege.

I found those experiences very rewarding and the learning points very beneficial to my professional career.

Did you consider a career in the private sector before becoming a JLC? Why did you choose life in the public sector?

Yes. In fact, I joined the private sector right after I had graduated. I was keen to become a litigator and the private sector was the way to go as far as I was concerned to become a successful litigator. In fact, I was a pupil to a senior counsel at a big four firm before joining the public sector. But, it is an honour and a privilege to become a JLC. So when the opportunity arose, I readily applied for appointment as a law clerk.

Before formally being offered the job and accepting, we had tea with the Court of Appeal judges and from that particular meeting, I appreciated that being a JLC is a good way to contribute to the development of the law.

Of course, the opportunity to work for and learn from the Supreme Court Judges was too good to pass on.

Was it difficult to make the transition from JLC to AR? Even though I assisted in cases of considerable importance as a JLC, ultimately the decision remained that of the judge or judges. As an AR, even though the cases are more procedural and have less of an impact than that of the cases before the High Court or Court of Appeal, every decision is mine. That makes a world of difference. It took some time to get used to actually making a decision and learning to be decisive. I found that challenging but after three years as an AR, this [decision-making

privilege] is one aspect of my job that I really enjoy.

What sacrifices in terms of a social life did you have to make when you became an AR? Well, I still enjoy the company of my friends, many of whom are in private practice. As an AR we have to be careful not to socialise with friends who are involved in pending matters before us and that of course requires some rescheduling of appointments. But, I do not think my social life has suffered. It just requires more care.

Also, I have made many friends in the Supreme Court and there is a strong sense of camaraderie amongst the JLCs and the ARs. In totality, I think being an AR has not led to any sacrifices in terms of a social life.

“

there is a valuable instinct common to everyone in deciding whether something is right or wrong.”

Has your role as a judicial officer affected your relationships with friends and family? What are dinner table conversations like?

Because friends and family know that I work in the Supreme Court, it is natural for them to ask me questions about the latest high profile case. In these circumstances, if it concerns a pending matter, I have to simply politely decline to comment. But where cases have already concluded and a decision or judgment has been issued, I try to explain in layperson terms why the court decided what it decided. I have often found that although legal training allows lawyers to frame an issue as a legal question and to deal with it with analytical precision, there is a valuable instinct common to everyone in deciding whether something is right or wrong. As one of my contract law professors, Dang Xuan Hop, used to tell us, if the law is not commonsensical, maybe it is time to change the law. In that regard, I find that my dinner table conversations can be helpful and educational to me when I take to the opinions of my friends and family.

What are some of the most difficult parts of being an AR? The law is not the same as the study of mathematics. As a discipline, the law does not exact the same precision as mathematics in the solving of problems. And that is simply because the law deals not with inanimate numbers but with people. The human issues are the most difficult. As an AR, I find that the most difficult aspect of the job is dealing with applications which will have

“

a great impact on the man in the street. For instance, bankruptcy proceedings and proceedings to repossess property can cause great distress to the defendant and must be handled with wisdom and sensitivity. Even if a particular result cannot be avoided, it is important to listen to the defendant and to ensure that they have had an opportunity to be heard so that they appreciate that the matter has been dealt with fairly and that they have been accorded justice.

In matters of discretion, the law sometimes also allows compassion to be exercised. One example relates to proceedings for a bankrupt to be discharged from bankruptcy. Where a bankrupt has incurred his debts as a result of genuine business failure, the jurisprudence demonstrates that the court will be more willing to discharge that bankrupt from bankruptcy as compared to a debtor who has recklessly incurred debts. So, the solving of legal problems is rarely mechanistic and the practice of law and judging is rarely and should not be legalistic; the human element is central.

What is the most rewarding part of your work?

Intellectually, the most rewarding part of my work is being able to contribute to a corpus of law either through my assistance to the judges in the form of research as a JLC or more directly through writing judgments as an AR. Emotionally, it is making a difference to the litigants in the form of according them due process and giving a just result. Professionally, the most rewarding part of my job is having had the opportunity to work closely with the former Chief Justice, Chan Sek Keong, from whom I received much advice and learned much.

if the law is not commonsensical, maybe it is time to change the law.”

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DONâ&#x20AC;&#x2122;T JUDGE A BOOK BY ITS FACE

This article responds to the recent Media Development Authority regulations and examines their practical applicability. It also considers their necessity and/or expediency in protecting national interests.

by Jerrold Yam

University College of London Illustration by Nathan Hartono

INTRODUCTION While the legality of the Media Development Authority’s (MDA) new framework is rightly uncontested under the Broadcasting Act, its repercussions have already been felt by the online community. Their remonstrance is most prominently displayed by a letter1 from the Asia Internet Coalition (AIC) to the Ministry of Communications and Information (MCI), thereby resulting in the issue’s dominance over recent parliamentary debates2. While the potential impact of such regulations is alleged to be an infringement on freedom of expression, this is at best a hyperbolic reaction to what the Singapore Constitution has never promised to absolutely safeguard. Instead, the practical applicability of the new regulations, as well as their necessity and/ or expediency in protecting national interests, should be scrutinised.

MDA’S NEW LICENSING FRAMEWORK Briefly, the framework3 requires “online news sites (to) be individually licensed if they (i) report an average of at least one article per week on Singapore’s news and current affairs over a period of two months, and (ii) are visited by at least 50,000 unique IP addresses from Singapore each month over a period of two months.” The government has reiterated that this scheme lies under its legislative competence as directed by the Broadcasting Act: Power of Authority to grant licences 5—(1) The Authority may grant the following licences: (a) broadcasting licences; and (b) broadcasting apparatus licences.

(2) The Authority shall grant licences under subsection (1) in such categories as the Authority may determine are appropriate for the regulation of the broadcasting industry.

LEGISLATIVE COMPETENCE Firstly, like Article 10 of the European Convention on Human Rights, which confers the “right to freedom of expression” on citizens of a ratifying 1 http://www.asiainternetcoalition.org/advdoc/ace4539402dc4960ed258b79867847af.pdf 2 http://www.straitstimes.com/breaking-news/singapore/story/ haze-issue-and-mda-rules-top-parliaments-agenda-monday-20130705 3 http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/ Pages/28052013.aspx

party state, subject to laws that are “necessary in a democratic society”, Article 14 of the Singapore Constitution states: Fundamental liberties 14(1)(a)—Every citizen of Singapore has the right to freedom of speech and expression.

This is subject to Clause 2: 14(2)—Parliament may by law impose – (a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence.

Such provisions connote that “rights to freedom of expression are not absolute. They can be curtailed

by Parliament, which has the power to legislate restrictions on these freedoms. There are no references within the (Singapore) Constitution to international human rights standards.”4 Not only does the framework echo a similar trend in New Zealand and Britain who are “reviewing their regulatory approaches and frameworks for new and old media”5, a new framework would streamline traditional and online media under the same rules, thereby lending consistency in a heretofore unregulated territory in media law.

Consequently, in light of the legislative competence of MDA as conferred and defined by the Broadcasting Act, as well as the absence of commitment by the Singapore Constitution to absolute standards of liberalised expression, arguments which decry the lack of consultation and transparency6 are legally unjustifiable, by virtue of the fact that, politically sound or otherwise, the new regulations are perfectly commensurate with the law regardless of professed procedural unfairness or arbitrariness.

4 Freedom of Expression and the Media in Singapore (Article 19, London, 2005), p.17 5 Leonard Lim, S’pore ‘not alone’ in tweaking media laws (The Straits Times, 05 June 2013) 6 http://www.freemyinternet.com/policy-brief/

PRACTICAL APPLICABILITY However, it is contended that “the current vague and broad terms in the regulation and implementation will hamper innovation and deter industry growth.”7 Presently, companies will only know if they fall under the purview of MDA’s new framework upon notification by MDA, in the absence of clarity on matters such as what constitutes a news site, which websites are applicable (i.e. do IP addresses need to end with ‘.sg’), and when does a site that delivers more content than current affairs, as is often the case, become by virtue of proportion a news provider.

Additionally, parliamentary attempts at defining what constitutes ‘news’ are at best lackluster and circuitous. According to MCI’s recently published response to parliamentary questions, “bloggers, Internet commentators and niche sites provide their personal perspective of issues, and do not regularly report on the news and current affairs of the day. As a result, they have not been determined to be reporting on Singapore news and current affairs, and so these websites do not fall within the scope of the licensing framework. However, should these websites morph into online sites reporting on Singapore news, MDA will have to separately assess if they meet the two criteria for licensing.”8 Prominent bloggers such as Xiaxue, who reports sporadically on Singapore news such as the General Election of 2011, seem to fall out of the ambit of the licensing framework. This illustrates a status quo rather than an inexorable state of affairs, since blogs may “morph into online sites reporting on Singapore news”, even though both the process of ‘morphing’ and what constitutes ‘Singapore news’ remain murkily undefined.

While such legal interpretive uncertainties lead to confusion in the short term, since there is no present guidance on the aforementioned issues, they do not justify the complete abolition of the new framework. Rather, clarification of the framework would be helpful. A suspension may not be justifiable on this tangent since kinks in a policy will only be identified and summarily addressed after implementation, or debate shall wrestle with little more than theoretical possibility.

Also, it is arguable that by aligning rules pertaining to traditional media with its online counterpart, 7 http://www.asiainternetcoalition.org/advdoc/ace4539402dc4960ed258b79867847af.pdf 8 http://www.mci.gov.sg/content/mci_corp/web/mci/pressroom/ categories/parliament_qanda/mci_s_response_topqsonlicensingframeworkforonlinenewssites.html

with the standards of the former being governed by the Internet Code of Practice and Class Licence, there would be greater uniformity that will benefit Singapore media reportage in the long run. The question then is whether new and old media are compatible, and if the government is attempting to control something beyond its sphere of influence, with the internet surpassing traditional media not only in many ways such as quantity, availability and credibility by virtue of the articulation of alternative viewpoints not published by traditional vehicles, but by a colossal extent as well.

PROPORTIONALITY Additionally, as pointed out by new media observer Dr Carol Soon, there are distinct differences between MDA and its equivalent in countries such as New Zealand: “There, the regulatory body is independent, not established by legislation, and membership is voluntary. The move is perceived as providing the means for people to seek recourse, and not so much of censorship.”9 According to the framework, eligible online news sites must remove any content that is purported to breach MDA’s standards within 24 hours, or their performance bond of S$50,000 shall be forfeited10.

The fear surrounding fervent opposition to MDA’s scheme is intrinsically linked to the government’s purported propensity to utilise media law as a sword rather than a shield. Accurately or otherwise, it has been suggested that “the MDA and MICA (now MIC) seem to have unlimited power to censor different forms of information and expression, without a system of check and balance, or control from civil society.”11 As Article 14(2) of the Singapore Constitution suggests, how will the courts determine if the new regulations are necessary or expedient in the interest of the security of Singapore? Firstly, it must be acknowledged that no clear guidance on the terms ‘necessary’ and ‘expedient’ are found in the common law12. In Chee Soon Juan v PP13, a case in which the appellant proceeded with a rally even though his application was rejected by the licensing authority, the court as perceived by 9 Leonard Lim, S’pore ‘not alone’ in tweaking media laws (The Straits Times, 05 June 2013) 10 http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/ Pages/28052013.aspx 11 Freedom of Expression and the Media in Singapore (Article 19, London, 2005), p.37 12 Ed. Li-Ann Thio and Kevin YL Tan, Evolution of a Revolution: Forty Years of the Singapore Constitution (Routledge, 2008), p.177 13 [2003] 2 SLR 445

some academics “appeared to have assumed that Parliament had struck the right balance between the freedom of speech and expression as provided under Article 14(1)(a) and the restrictions under Article 14(2)(a).”14 However, the new regulations are aimed at the issuance of licenses, which is different from, or even the converse of, limiting the powers of an existing group of websites, no matter how similar the eventual outcome or governmental intention.

The European Court of Human Rights (ECtHR) in Informations- verein Lentia and others v Austria15 affirmed the practice by some countries of issuing licenses subject to specified conditions of variable content by considering it to be compatible with Article 10 of the Convention: “States are permitted to regulate by a licensing system the way in which broadcasting is organized in their territories”16.

convincing due to strong judicial reluctance in entertaining subjective morality (Lim Meng Suang v AG22). The third factor is obviously inapplicable.

CONCLUSION Beyond the legislative competence of MDA in implementing its new licensing framework, the wisdom of its execution must be evaluated in political and social terms, which is neither the ambition nor intention of this essay. Presently, the framework is undoubtedly in need of practical elucidation, especially since there is little or no legal guidance on how proportionately necessary or expedient a restriction on the fundamental liberty of freedom of expression must be for it to be valid.

Furthermore, it is possible that Singapore courts may take into account the proportionality test undertaken by the ECtHR, which will regard interference as disproportionate if it impairs the very essence of the right of free speech or if the justification for the interference cannot be proved (James and others v UK17). In general, the test requires the justification of a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective. There are significant factors18 influencing this relationship.

Firstly, the fundamentality of the Convention right in question (freedom of expression is recognized as fundamental in Handyside v UK19). Secondly, the objectivity of the restriction in question as the Court distinguished between the objective nature of maintaining the authority of the judiciary (which left a narrower margin of appreciation for the state) and the subjective nature of the protection of morals, where the Court should defer to domestic views (Muller v Switzerland20).

Thirdly, whether there was a consensus in law and practice among member states (Marckx21).

While the first factor may be of importance to Singapore courts, since freedom of expression is regarded as a ‘fundamental liberty’ under the Singapore Constitution, the second factor is not 14 Ed. Li-Ann Thio and Kevin YL Tan, Evolution of a Revolution: Forty Years of the Singapore Constitution (Routledge, 2008), p.177 15 [1993] Series A No. 276 16 Directorate General of Human Rights, Case Law Concerning Article 10 of the ECHR (Council of Europe Publishing, 2001), p.8 17 [1986] ECHR 2 18 http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ echr/paper2_en.asp#P164_17347 19 [1976] 1 EHRR 737 20 [1988] ECHR 10757/84 21 [1979] ECHR 00006833/74

22

[2013] SGHC 73

SMALL IS WHERE ITâ&#x20AC;&#x2122;S AT

by Kyle Koh

University College of London

Over the past few years, Singapore has become the trendy place for lawyers to be. The legal market is burgeoning. The island is now host to entrenched their presence through the 2012 issue of Qualifying Foreign Law Practice (QFLP) licences. The 24% rise in the number of indicator of the marketâ&#x20AC;&#x2122;s robust growth.

lured by the promise of high salaries and glamorous international work, to eschew or even forget the more traditional career routes that have been the mainstay of the legal industry for many years. What remains legal trade. They are the unsung heroes of the industry.

But as we will discover, hectic hours are not the exclusive preserve of as the ideal vehicle from which to service their corporate clients; others see it as a way to serve the common man. Nonetheless, a common thread that runs throughout is a very perceptible streak of independence.

In choosing their paths, our interviewees sought to avoid becoming leashed to an existing corporate structure and were determined to become masters of their own fate.

Photographed by Zachary Tan

ANNE CHOO is the CEO of Citilegal specializes in corporate and commercial work, won the Asian Legal Business chapter of International Stock Plans: The Practitionerâ&#x20AC;&#x2122;s Guide to Exporting Employee Equity by Louis Rorimer. Anne is also the Chairperson of the Tan Ah Children.

GEORGE LIM, SC is a partner at Wee, Tay & Lim LLC, which has nine lawyers. He practises as a trial lawyer, arbitrator and mediator. George helped to set up the Singapore Mediation Service Medal for his contributions to the legal profession.

KENNETH KOH is a director at Unilegal on construction litigation, arbitration and mediation. He is legal advisor to the Singapore Contractors Association and authored the Singapore chapters in two international publications: Transnational Oceana Publications; and The Handbook

Where did you work before striking out on your own?

Anne Choo: I began my career at Allen & Gledhill, worked there for three years and joined Pontiac Land as an in-house counsel, where I spent two years. I struck out on my own in 1986 with my fellow partner, Jimmy Yap. George Lim: I started my legal career in Drew & Napier. I learnt a lot at Drew but after three and a half years, decided that I wanted to work in a smaller firm and left with two colleagues to join Chan Cher Boon & Partners. That stint was useful as it taught me how to run a smaller firm. After two years, I joined my current partners, Wee Pan Lee and Tay Keow Ming, who had started Wee & Tay. We were classmates from law school, and that was the genesis of Wee Tay & Lim. Later, another classmate, Alex Chang, joined us. Today, we have nine lawyers in the firm.

Kenneth Koh: I completed my pupillage in the mid1980s at Allen & Gledhill, which then had only 28 lawyers! I joined another practice shortly thereafter

and was seconded to the Singapore office of an English law firm. I set up practice with a partner in 1988 but continued to work closely with that English law firm. My five years of close association with it led to my specialising in construction law.

It was timely as Singapore had just started work on its MRT system. My practice continues to focus on disputes involving infrastructure work.

Why did you choose to be in a small firm?

Anne Choo: I disagreed with the way law was practiced at the time. I felt that in the 1980s, corporate firms lacked a ‘can do’ attitude. Firms were not proactive and lawyers were entrenched in their roles as mere legal advisors. I believed that lawyers and their clients could form a symbiotic business partnership. Moreover, I treasure my sense of autonomy and independence. I felt that with my own firm, I would be in greater control of my own destiny and forge my own path.

George Lim: I have always believed that law should

be a service to people. Because I came from a poor family, I wanted to practise law in a firm which gave me more flexibility and the ability to help the common man. The other factor was more control over my life, and better work-life balance.

I would return to practice as an employee in another firm. I was confident that my expertise in construction law would always be in demand.

Kenneth Koh: My original plan was to work in a large firm, prove myself and accept partnership. I was, however, open to other options. In my case, the long hours prompted the change – since I had to work so hard, it may as well be for myself. When the time came, my excellent working relationship with the English firm opened opportunities which would not have been available to a new start up. I was also blessed with the best partner that anyone could possibly ask for or have. It was these special factors which enabled me to abandon the relative security of employment.

How did you surmount these difficulties?

What were the main difficulties you faced at the beginning?

Anne Choo: We started from scratch. Finding my own clients was the greatest challenge. Without a salary, there was no guarantee of a consistent income. Without a group of colleagues, there was no immediate access to a pool of expertise and nobody to brainstorm legal issues with. Not to mention that we had to worry about everything from accounts and rent to sourcing furniture (second-hand of course!) for the office.

George Lim: In a large firm, many clients come because of the reputation of the firm. So, as a junior lawyer, I used to act for banks, insurance companies and large companies. They were happy with the service I provided. But if you leave the firm, these clients are unlikely to follow you. So, in a smaller firm, the first challenge for me was to start building a steady pool of clients.

Kenneth Koh: There was always the perception that the firm was small and had little track record.

But the risks of striking out were completely eclipsed by the sheer opportunities that were available in the late 80s and early 90s. The partnership was scrupulous in its financial management and avoided overdrafts. At worst, the partnership could be dissolved without debt and

Anne Choo: I had no choice – there was no turning back. I relished the challenge of proving to myself that could you could be small but successful. My friends and family referred work to me and introduced me to new clients.

Furthermore, I accepted work that other firms were unprepared to do, either because it was too difficult or too troublesome for them to pursue. I was indiscriminate in my appetite for work. After struggling for my first two years, we caught a lucky break. Our work impressed a foreign firm, which began to consistently refer work from foreign blue chip clients to us. Thereupon, we carved our niche in the market – MNCs and foreign clients.

I managed to retain these clients over the years because I was able to work superhuman hours and cater to foreign time zones. Additionally, it is critical to the survival of small firms to have a cadre of colleagues whom you can trust and rely upon. I am grateful to my team of lawyers and staff who have stayed with me through thick and thin.

George Lim: Some clients came with me, and I took care to do their work well, and build relationships.

They referred other clients to me, and after a while, the pool of clients increased. I believe that if you are a competent and hardworking lawyer, clients will come to you eventually.

Kenneth Koh: The firm was marketed on the strength of its partners’ experience and track record. We also had the backing of the English law firm and supportive friends and family. Our clients also became the source of referrals that grew the practice.

What are some challenges in running your firm that a larger firm would not face?

Anne Choo: With a small team, we have to constantly straddle various areas of the law and must be versatile in our expertise. Each of us must be competent in corporate commercial, property, IP law and the like, whereas big firms have discrete

“

You roll up your sleeves and learn to do everything. It a great experience and teaches you that people are tougher than they give themselves credit for.”

-Kenneth Koh

departments for each of these practice areas.

Additionally, we simply do not have resources such as a dedicated research department that a large firm would have. Often times, basic tasks like proofreading that would otherwise be done by an intern or a trainee has to be done by associates.

few people to consult trains you to be independent and to think out of the box. Simultaneously, a small firm eliminates the hierarchy inherent in many large firms. In my firm, trainees and even interns have direct access to all partners. Ultimately, people become friends and not just co-workers.

George Lim: Having an established clientele, attracting students with better grades, acting for clients who have difficulty paying.

George Lim: In the days when there was a quota on lawyers, the smaller firms suffered because there were not enough lawyers to go around. We could not grow or rejuvenate ourselves. Today, with close to 500 lawyers coming into the market each year, the situation has improved. There are also lawyers who, after three or four years in a large law firm, decide that they want better work-life balance and decide to join a smaller firm.

Kenneth Koh: The biggest challenge, while having to discharge lawyering duties, is also to devote time to operational requirements of the firm. You are owner, manager, secretary, peon etc. all rolled into one; you roll up your sleeves and learn to do everything. It a great experience and teaches you that people are tougher than they give themselves credit for.

Is it difficult to attract talent in a small firm? How can small firms attract talent?

Anne Choo: Extremely. We cannot match the perks and salaries of foreign firms, nor the big local firms. That said, the training in small firms can sometimes be superior. Where there are few partners to provide handholding, trainees must undertake responsibility from the get go and are exposed to a multitude of experiences early on.

There are greater opportunities for both trainees and junior associates to interact directly with clients and these accelerate their learning. Having

Kenneth Koh: Yes. The reality is that there is no glamour in a small firm. Your introduction as a lawyer will not be accompanied by the awe that would otherwise impress strangers if you were with a big law firm; never mind that they have no idea what that might mean. Small firms can attract talent with prospect of successorship but often, this same talent would set up shop on their own.

Why do clients choose to work with your firm instead of with a larger firm?

Anne Choo: We are able to offer a personal service and flexibility. Corporate clients who have developed a strong relationship with us

will trust us even with personal matters such as conveyancing, probate issues, and matrimonial matters. We are less limited by departmental roles and so each partner can provide a one-stop solution to his or her client; even if they cannot advise on a particular issue, they will be a conduit to another lawyer, ensuring that the client feels at ease throughout.

George Lim: I would like to think that we can provide more personal service and attention.

Many of my clients have been with me for many years and trust me. Also, our overheads are lower and we can be more flexible in terms of costs arrangements.

Kenneth Koh: I am told by my clients that they favour me over the larger firms because of my prompt and personal service. They also appreciate my reasonable charge-out rates.

Do you have any regrets? Do you ever feel like you should have remained with a larger firm?

Anne Choo: Absolutely not. I would not have been able to cultivate such deep and rewarding relationships with my clients had I remained with a larger firm. Specializing in foreign clients also broadened my exposure and shaped my perspective of the world.

George Lim: Definitely not. I would have made more money in a larger firm, but it would not have given me the flexibility to do the things I am doing today. For instance, I enjoy mediating cases, and do a fair amount of church and charity work.

Kenneth Koh: No. But sometimes it’s disheartening when I am not shortlisted for a brief that is well within my expertise only because of the perception that I am not from a large practice.

What advice would you give to young lawyers who aspire to have a long and successful career in the legal profession?

Anne Choo: Establish a strong basic skill set by joining a larger firm. This will show you how a law firm should be professionally managed and will expose you to big deals and cases. After all,

I’m grateful for the training I received at Allen & Gledhill. Once you have acquired these basic skills and if you feel you want to do things differently and flourish outside of an existing corporate structure, don’t be afraid to explore your options.

Striking out on my own was the riskiest and most rewarding aspect of my career. Most importantly, always maintain a sense of humility and gratitude to those who have helped you in the past.

Ultimately, the business of law is about human relationships.

George Lim: We are a privileged bunch. Clients come to us and rely on us to protect their rights.

How we handle their cases affects their lives, sometimes their liberty. See law as a service to society. Build relationships with your clients. Go the extra mile for a client when necessary, even if he cannot afford it. Money is important, but it should never be the main thing.

Kenneth Koh: The first 3 years are the most difficult. Most of the attrition suffered by the profession occurs during this time. The practice of law is a professional calling. It is a marathon. From my experience, the following are important: 1) Understand the motivation which led you to enter practice in the first place.

2) Equip yourself with the requisite knowledge and experience to develop an expertise.

3) Be prepared to adapt and change to suit the needs of clients and the profession.

A MATTER OF LIFE & DEATH I While death may be our singular ultimate obligation as a human race, the march of ability to control the rate and time of passing. This article argues that it is immensely its application within reasonable bounds, and that the law should approach any reform with extreme caution.

by Stephanie Chew

Shakespeare once remarked, perhaps redundantly, that all that lives must die, passing from through nature to eternity1. While death may be our singular ultimate obligation as a human race, the march of time and progress has demanded that we face up to difficult questions concerning our ability to control the rate and time of passing.

Indeed, while much of medical science is concerned with prolonging life, at the other end of the spectrum we must deal with terminal and chronic illness, devastating disability and brain damage. Developments in artificial life support, disability management and palliative care, to 1 William Shakespeare, The Tragedy of Hamlet, Prince of Denmark (first published 1603, Thompson and Taylor 2006) Act 1 Scene 2 Line 72

name a few, have vastly expanded our abilities to increase both lifespan and quality of life (although the two are not always concomitant). It is a great irony that a whole new spectre of issues regarding the appropriateness of terminating life has arisen in tandem with this progress â&#x20AC;&#x201C; when, where, why and how should we be allowed to die, if at all?

The debate on euthanasia is a particularly sensitive one given the complexity of the moral issues and the immense spectrum of perspectives it provokes. Death is a fundamentally emotional and inescapably human issue â&#x20AC;&#x201C; yet the law must find a way to broach this delicate subject with

the care and precision that it requires. In the proceeding discussion, the article will focus on three key strands – Firstly, autonomy as the theoretical justification underpinning the proponents of legalising euthanasia, secondly, the role of consent, and thirdly, the inherent dangers of legalisation. On these grounds, it will be argued that it is immensely difficult to develop a coherent approach towards legalising euthanasia that would keep its application within reasonable bounds, and thus the law should approach any reform with extreme caution.

Nevertheless, the Advance Medical Directive Act3 allows for legally competent adults to refuse lifeprolonging treatment. Under s 3(1), any person of sound mind, who has attained the age of 21 and who desires not to be subjected to the artificial prolongation of the dying process in the event of his suffering from a terminal illness, may at any time make an Advance Medical Directive.

Notably, an AMD is anticipatory in nature – that is, the individual is indicating his desire to refuse artificial life support prior to any event that would render such treatment necessary.

THE CURRENT STATE OF THE LAW

THE SANCTITY OF LIFE

Euthanasia refers to the termination of life of a patient who is suffering from an incurable (physical) illness or in an irreversible coma by a positive act. Involuntary euthanasia refers to instances where the patient has not given his consent, while voluntary euthanasia refers to those situations where the patient has consented.

Voluntary euthanasia refers to instances where the act that causes death is conducted by a medical professional (e.g. administering a lethal dose via injection). This is to be distinguished from assisted suicide, where the final act that causes death is conducted by the patient himself. While this article focuses largely on euthanasia, many of the principles overlap. Indeed, the distinction between the two is often based on the presumption that providing the resources for someone to commit an act and committing the act yourself differ – and that the former somehow accords more value to the autonomy of the patient. Yet it may well be that the two are not morally distinct2, and that what lies at the heart of the issue is whether the patient has given his full and unqualified consent, the latter a concept which we will address in full later.

At the heart of the matter rests an uneasy tension between individual autonomy and the sanctity of life.

Voluntary (and of course involuntary) euthanasia, as well as assisted suicide, are illegal in Singapore.

Section 309 of the Penal Code criminalises attempted suicide. Read in conjunction with section 107, abetting an attempted suicide is thus also an offence. Where the attempt to commit suicide is successful, s306 of the Code imposes criminal liability on the abettor.

2 John Keown, Euthanasia, Ethics and Public Policy. An Argument Against Legislation (Cambridge University Press 2005)

The sanctity of life refers to the intrinsic value of life – the idea that life is of and in itself valuable.

Indeed, Lord Donaldson MR in Re J4 noted that “we all believe in and assert the sanctity of human life”. Similarly, in Bland5, a leading case regarding the withdrawal of treatment from patients in a persistent vegetative state, the court affirmed that the principle “is the concern of the state, and the judiciary as one of the arms of the state, to maintain”. The Human Rights Act 1998 in the United Kingdom similarly enshrines the right to life. In its simplest terms, the fact that it is illegal to murder (regardless of who it is you may be murdering) around the world reminds us that the right to life is fundamental.

Nevertheless, with increasing modernisation and liberalisation, the value of individual autonomy has taken increasing precedence. Autonomy refers to our right to self-determination and to make our own choices – perhaps extending to the right to decide to accelerate death. The pro-legalisation camp often frames the choice as one about having the right to die with dignity, when one has decided that one’s quality of life (or lack thereof) is such that life itself is no longer worth prolonging. Thus, the value of life is instrumental and subjective. While this position may appear intuitively attractive 3 4 5

Advance Medical Directive Act 1997 Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930 Airedale NHS Trust v Bland [1993] AC 789

in that it accords significance to the individual’s desires, this must be weighed against the alternative perspective that life inherently possess an objective value – that is, the sanctity of life6.

It is true that medical law as a whole attributes significance to a patient’s desires when they have the capacity to make their own choices. Indeed, even when a patient’s choice may conflict with the doctor’s opinion of what would be the best course of action to achieve recovery, and may in fact prolong the patient’s pain or even cause death, the doctor is not allowed to arbitrarily impose treatment. The value accorded to the patient’s right to make his own choices demonstrates that the law recognizes an individual’s right to self-determination, even where his opinion may not be in sync with the majority perspective.

Furthermore, the idea that the value of life and living itself can be determined by respect to an individual’s subjective preferences may have rather more ominous implications. Indeed, if life has no intrinsic value apart from what individuals endow it with, the logical extension would be that the value of life can and indeed does vary between persons.

It suggests that the value of life is something that can be compared between individuals. Would the disabled, the elderly, the mentally ill or weak then have less valuable lives by virtue of their disabilities?

On a utilitarian perspective, such logic may well make sense – Bentham thought that the greatest good was happiness, and that increasing aggregate happiness was the deciding factor that determined whether an action was right7.

Indeed, he said that “it is the greatest happiness of the greatest number that is the measure of right and wrong.”8 The commensurability of ‘the good’ in such a model indicates that maximizing happiness was all that mattered. Analogously, if we could increase net happiness by removing individuals whose lives were of a lower quality, this would surely be right and just to a utilitarian.

Bernard Williams illustrated the potential horrors of such a utilitarian conclusion through his 6 see Keown, 2005 7 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (first published 1789, Oxford Clarendon Press 1907) 8 Jeremy Bentham, A Fragment on Government (first published 1776, Cosimo Incorporated 2012)

thought experiment of Jim and the Indians9. In the proposed thought experiment, Jim is wandering through the jungle and stumbles across a tribe. On that particular day, five men are lined up against the wall and a commander is holding a rifle ready to murder them. However, upon noticing Jim’s arrival and ascertaining that he is a visitor from a foreign far-away land, the commander proposes a new suggestion – In honour of Jim’s visit, he will allow Jim to kill one of the men and allow the rest to go free. If Jim refuses, he will proceed with the original plan and shoot them all.

The utilitarian may be compelled to argue that Jim would well be making the right choice by taking up the commander’s offer and shooting one – Net happiness would probably be higher if only one was killed rather than if all were killed. Yet this would intuitively seem an utterly unpalatable solution to many – And indeed, the answer could equally be that Jim should not take up the commander’s offer.

One common justification could be that in refusing to take up the offer, Jim is merely committing an omission and not a positive act. Nevertheless, it is submitted that the more satisfactory explanation as to why Jim should not kill one to save the four is because the value of their lives is intrinsic and incommensurable – The value of life is not something that can be multiplied, added or subtracted interpersonally. Similarly, involuntary euthanasia is unacceptable not only because it violates the autonomy of the individual but because life has intrinsic and not merely instrumental value.

The argument that begins promisingly with valuing the sacredness of the individual’s autonomy ironically seems to bring us ever-closer to the precarious position that involuntary, nonconsensual euthanasia would not only be an acceptable, but a merciful and just way forward.

AUTONOMY AND CONSENT It is clear then that autonomy, while a valuable concept in the discussion on the acceptability of euthanasia, is not the be-all end-all. Even if we were to accept autonomy as a starting point and a fundamental justification, in order for the focus 9 JJC Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge University Press 1973)

to remain on self-determination, the patient must be able to give his full and unqualified consent.

Furthermore, while autonomy is a valuable concept, whether this extends to the right to accelerate death is debatable. There is surely a marked difference between the autonomy that allows patients to make their own choices regarding medical procedures, even where this may lead to adverse outcomes, and the autonomy that allows patients to actively choose death.

In the former scenario, it may well be that the patient’s refusal of a particular treatment on grounds such as religious beliefs may result in his untimely demise, however, his decision is made because of his belief, and not because he actively seeks to accelerate death. Thus, in Blaue10, the victim of wounding declined a blood transfusion on the basis of her religious beliefs – Nonetheless, the court held that this did not break the chain of causation between the wounding and her death. It was not permissible for the defendant to say that his victim’s religious beliefs were unreasonable.

Arguably, the victim did not intend or desire to die – rather, the outcome was the inevitable result of a choice she had made based on a fundamental belief.

Skeptics might point out that one dead man is as good as another, and that there is little difference between a patient who dies because of his own convictions (perhaps even aware of the fact that this will lead to his death) and one who dies because he chooses to accelerate death. Yet it appears to this author that this makes all the difference in the world – one approach emphasises the value of the individual’s worldviews and respects that his acting on them might consequently lead to his death, while the other is a direct choice of death itself.

Indeed, the doctrine of double effect precisely highlights this – Section 88 of the Penal Code provides that it is not an offence to commit an act which harms or causes death as long as it was not intended to cause death, was done with the consent of the relevant person, in good faith, and for the benefit of the person. This distinction between the intention to cause death and the mere foreseeability 10

R v Blaue [1975] 1 W.L.R. 1411

of death hence allows doctors to, for example, administer drugs with the intent to relieve pain while being aware of the potential of death. The fact that the Penal Code recognises this fine distinction offers support for the viewpoint that there is indeed a difference between choosing to cause death and making a choice based on other reasons with the understanding that death may occur.

Even if we were to accept that patients have the autonomy to choose to accelerate death, the significance accorded to this is restrained by the need for the patient to have the capacity to understand the choice that he is making.

With regard to medical procedures in general (not necessarily ones pertaining to accelerating death), the law is often concerned with the patient having the capacity to make the choice that he is making at the time the medical procedure is about to be carried out. Hence, in Re MB11, a woman’s fear of needles rendered her temporarily incapacitated to make a decision. There is a need for concomitance between the consent (while having the capacity to give consent) and the time of the procedure.

As an illustration, the law in the United Kingdom demands that giving consent to sexual intercourse entails a person agreeing by choice, and having the freedom and capacity to make that choice.12 Thus, in Kirk13, a young girl who had intercourse with an older man who offered her food and shelter when she was in destitute circumstances did not have the freedom to choose to refuse sex – and the defendant was thus guilty of rape even though he did not exert overt pressure such as threats.

These examples are raised as demonstrations of how strictly the law views consent in such intimate matters. If the law is so concerned with protecting the inviolability of the human body with regard to sex, surely we should expect similarly strict, if not stricter, standards to apply to the quality of consent required for choosing to terminate one’s life.

Nevertheless, in many cases where euthanasia is contemplated, the patient is precisely unable to give such consent due to his deteriorated state 11 12 13

Re MB (an adult: medical treatment) [1997] 38 BMLR s74, Sexual Offences Act 2003 R v Kirk [2008] EWCA Crim 434

– whether due to a chronic and/or terminal illness having worsened, or because of a sudden incident that has rendered him incapacitated.

In the former scenario, it may be possible that the patient has signed an Advance Medical Directive underlining his wishes to refuse life support, and on this basis, is allowed to die. One may question the consistency of allowing AMDs and simultaneously criminalizing voluntary euthanasia, but perhaps this is the pragmatic solution the law has adopted in light of the lack of a moral consensus. Providing for AMDs accords significance to the patient’s own wishes and his right to self-determination while at the same time not crossing the boundary into allowing others to speak on behalf of the patient when he is robbed of the capacity to consent.

Regardless, the underlying point is that it is often difficult to discern at the exact moment of the procedure what a patient’s wishes may be – and surely it is prudent to err on the side of caution when dealing with matters of life or death.

undercurrent, we are forced to conclude that any adult with sufficient capacity to consent may technically choose euthanasia even if he is not in pain or suffering from a terminal illness.

Even if we were to stipulate that the patient must be suffering from a terminal illness or in pain, this may confuse more than clarify. What degree of pain is sufficient? Does emotional pain (not amounting to a psychiatric illness) count? For instance, the loss of a limb to an Olympic athlete or the loss of a finger to a world-class violinist may be far more devastating than to an individual not in the same profession. How terrible must the prognosis be? After all, in medicine, “all anyone has are chances”15, and often “the die is in the air16” as to whether a patient will survive or not.

Medical science cannot be reduced to a matter of statistics. Even if we were to attempt to rank pain or suffering or poor prognosis on a scale, as Justice Scalia pointed out, this in an odd way inverts the question. Surely the patient with ten years of suffering ahead then has a more compelling case than the patient on the brink of death17.

FURTHER IMPLICATIONS It was noted above that the use of autonomy as a rational theoretical underpinning to justify voluntary euthanasia may well be an overinclusive one that, at least theoretically, suggests the acceptability of involuntary euthanasia. More generally, it also raises the question of what conditions must be present in order to justify euthanasia. If the overriding consideration is a patient’s autonomy, surely any number of reasons should be sufficient – and any attempts to categorise what is a justificatory reason would be merely arbitrary. Could euthanasia then be a viable option to mentally ill patients, or patients who are aged and healthy but merely tired of living? What of imprisoned criminals who are terminally ill?

The first category could possibly be eliminated by the requirement of consent, as mentally ill patients arguably do not have the capacity to consent, and hence the court may sometimes make decisions on their behalf in their best interests.14 Nevertheless, if autonomy is the dominating 14

Re F [1990] 2 AC 1

THE WAY FORWARD It thus appears clear that a shift towards the legalisation of voluntary euthanasia is near impossible. On one hand, the theoretical justification of autonomy is inevitably intertwined with the belief that life has merely instrumental value – But this in itself is highly contestable and, as demonstrated above, has potentially sinister implications. Furthermore, the practical problems posed by the pressing need for consent sound further alarm bells. We must be careful not to set an uncontrollable landslide in motion This is not to say that euthanasia may never be a viable option. It is thus suggested that the law should take a case-by-case approach in such emotionally tense situations, while retaining the current laws on euthanasia in order to demonstrate an underlying societal belief in the equal value and worth of each individual’s life. Thus, rather than voluntary euthanasia being an acceptable norm, it 15 16 17

Gregg v Scott [2005] UKHL 2 Gregg v Scott [2005] UKHL 2 Quoted in At Liberty To Die, supra n 5 at p 92

should perhaps be an acceptable exception.

For instance, in the United Kingdom, prosecutors possess discretion as to whether to press charges upon abettors of assisted suicide18. The House of Lords in R (Purdy) v DPP19 accepted that the decision to seek assisted suicide could fall within Article 8(1) of the European Convention of Human Rights â&#x20AC;&#x201C; the right to respect for private and family life. However, it qualified that the interests of the state validated an interference with this right under Article 8(2). As such, the previous restriction on assisted suicide could not be justified. Consequently, a lay person will avoid prosecution for assisted suicide if he has acted entirely on grounds of compassion and provides only reluctant assistance to a competent adult.20 Such a stand represents an acceptable compromise, allowing for the law to exercise mercy in the instances that euthanasia is a viable option, while at the same time preserving the status quo in favour of the intrinsic value of life.

Notably, these guidelines pertain to assisted suicide and not euthanasia, where a physician commits the final act. The criminal law has historically made a (perhaps tenuous at best) distinction between acts and omissions. In Bland, a patient in a persistent vegetative state was taken off life support â&#x20AC;&#x201C; however, the legal characterisation of his death was that the doctors had merely omitted to continue life support and thus no offence was committed.

It may well be that assisted suicide is a more palatable instance for prosecutorial discretion to be exercised, given that the final act is committed by the patient himself. Yet it is surely unprincipled to claim that there is any real difference between a patient who is suffering from a terminal illness, mentally competent and able to administer a lethal injection himself and one in the exact same position but unable to commit the final act himself. While this article emphasises the pressing concerns that arise when discussing the potential legalisation of euthanasia, one nonetheless concedes that in the cases where it may appear to be a viable option, the law should not be further clouded by distinctions without real differences.

18 Crown Prosecution Service (England and Wales), Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide 19 R (Purdy) v DPP [2009] UKHL 45 20 DPP, 2010

Perhaps the debate on euthanasia is one that will perpetually struggle to reach a conclusion, for the possibility of moral consensus is almost negligible.

Nonetheless, we are all mere mortals both destined for death and already in the process of dying, albeit at different rates. In our enthusiasm to control and regulate the dying process, may we not forget the fundamental and intrinsic value of life, and the equality of individuals regardless of how close to death we may be.

A MATTER OF LIFE & DEATH II In light of the growth of Singapore’s ageing population and advancement of medical science in prolonging life, the need for more measures to deal with end-of-life issues is intensifying. This article argues that Singapore should decriminalise physicianassisted suicide, in circumstances where terminally ill patients face imminent death, unbearable suffering, and believe that there is no other reasonable solution to their situation.

by Theodore Heng University of Bristol

‘Many people view legally assisted suicide as an appalling concept which undermines the fundamental human right to life itself. On the other hand, there are those… who firmly believe that the right to life includes the right to end one’s own life when one can still do so with dignity’ per Lord Hope in R (on the application of Purdy) v DPP [2009] UKHL 46 at [46].

in opposition to, and in support of, legally assisted suicide.1 For opponents, life is intrinsically valuable and should never be intentionally ended.

Conversely, supporters claim that life is only instrumentally valuable, and that the value of life is self-determined. This article will examine how a moral consensus in this debate, at once public and highly personal, cannot be achieved.

INTRODUCTION

Yet, in light of the growth of our ageing population and the advancement of medical science in

Lord Hope’s statement reflects the conflicting ethical accounts of the value of human life offered

1 Richard Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge-Cavendish 2007) 9-17, 131-140; Richard Huxtable, Law, Ethics and Compromise at the Limits of Life: To Treat or Not To Treat? (Routledge 2013) 103-122.

prolonging life, the need for more measures to deal with end-of-life issues is intensifying. A greater availability of options to dying patients is of increasing significance; the issue of whether assisted suicide should be legalised is a relevant one. This article argues that Singapore should decriminalise physician-assisted suicide2 (“PAS”), in circumstances where terminally ill patients face imminent death, unbearable suffering, and believe that there is no other reasonable solution to their situation3.

DEFINITIONS There are various forms of medical intervention by which accelerated dying can be effected.

Euthanasia is often referred to more specifically as voluntary active euthanasia (“VAE”). This distinguishes it from involuntary euthanasia and passive euthanasia. For the former, the life of a patient would be ended without their request. For the latter, death is caused through the withdrawal of life-sustaining treatment. Both PAS and VAE take place at the patient’s request. However, PAS differs from VAE in that the patient himself, not the physician, executes the fatal act in his own death.

This distinction provides an additional safeguard; it renders PAS a limited activity which can be safely regulated. It is the underlying rationale for advocating the legislation of PAS, and not VAE. CURRENT LAW IN SINGAPORE Attempted suicide is a crime by virtue of s 309 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). When read together with s 107 of the Code, it makes the abetting of an attempted suicide an offence. Where the attempt to commit suicide succeeds, s 306 of the Code holds the abettor of the suicide criminally liable. Physicians who commit PAS would thus be subject to prosecution.

It must be for Parliament to legislate any changes.

First, assisted dying is an intensely complicated 2 PAS is legal in Belgium, Luxembourg, Netherlands, Switzerland and the states of Washington, Oregon, Montana and Vermont in the US. 3 Puay San Toh and Stanley Yeo, ‘Decriminalising Physician-assisted Suicide in Singapore’ (2010) 22 Singapore Academy of Law Journal 381.

and profoundly divisive subject.4 Second, the constitutional validity of ss 306 and 309 are likely to be upheld by the courts, if they were to be challenged.5 Although this has not been done in Singapore, it has been adjudicated in India. In Gian Kaur v State of Punjab6,the Supreme Court of India rejected the appellant’s contention that ss 306 and 309 of the Indian Penal Code violated Articles 14 (Equality before the law) and 21 (Protection of life and personal liberty) of the Constitution of India. In particular, the court held that suicide is an unnatural termination of life and therefore inconsistent with the concept of “right to life” embodied in Article 21. Articles 12 and 9 of the Constitution of Singapore correspond to Articles 14 and 21 of the Constitution of India.

The Singapore Penal Code provisions are identical to their counterparts in the Indian Penal Code.

Arguably, the constitutional basis for ss 306 and 309 is sound.

VALUE OF LIFE: THE GORDIAN KNOT (1)

The intrinsic value of life – the sanctity of life argument

The intrinsic value of life prohibits intentional killing. At its core is the protection of the fundamental human right to life. It finds a clear place in the law. An instance is the prohibition of homicide. As Lord Lowry observed in the House of Lords case of R v Brown7, the intrinsic doctrine resonates among both religious and secular audiences. To atheists, human life has an ineradicable “dignity”. The human mind and body exists as an integrated whole; the mind cannot reject the failing body.8 To theists, the gift of life is for God alone to dispose of – life is sacred.9 The intrinsic doctrine is not vitalistic - it does not require the preservation of life at all costs.10 This can be illustrated in two ways.

4 Sundaresh Menon, ‘Euthanasia: a matter of life or death?’ (2013) 54(3) Singapore Medical Journal 128.

5 Puay San Toh and Stanley Yeo (n 3) 383-384.

6 AIR 1996 SC 1257.

7 [1994] 1 AC 212.

8 John Finnis, ‘Bland: Crossing the Rubicon’ (1993) 109 Law Quarterly Review 334.

9 Luke Gormally, ‘Prolongation of Life: The Principle of Respect for Human Life’ (1978) 1 Linarce Centre Papers 22-24.

10 John Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 483.

The first is the doctrine of “double effect”.11 It distinguishes the intention to end life (which is prohibited) from the mere foreseeability of death (which may be acceptable).12 It is enshrined within s 88 of the Penal Code which provides that it is not an offence to commit an act which harms a person as long as it was not intended to cause death, was done with the consent of the person harmed, in good faith, and for the benefit of that person. This justifies the administration of lethal palliative drugs with intent to relieve pain, notwithstanding the hastening of death being a foreseeable sideeffect.13 The second is the act-omission distinction. This is the arbitrary line that divides active and passive euthanasia. Both acts and omissions which cause the patient’s death are prohibited where there is intention to end life. However, in the absence of such intention, some fatal omissions are allowed.14 Life-preserving treatment may be withheld or withdrawn when it is either futile or burdensome.

The concern is always the worthiness of the treatment and not the worthiness of the patient’s life.15 In Singapore, much objection to the decriminalisation of PAS is largely based on religious beliefs.16 This stance is shared among the major religions – with the exception of Hinduism17 - of Buddhism18, Christianity19 and Islam.20 11 John Keown, Euthanasia, Ethics, and Public Policy: An Argument against Legislation (Cambridge University Press 2002) 19-30.

12 R v Cox (1992) 12 BMLR 38.

13 R v Adams, unreported, 8 April 1975.

14 Airedale NHS Trust v Bland [1993] AC 789.

15 John Keown, ‘Beyond Bland: A Critique of the BMA Guidance on Withholding and Withdrawing Medical Treatment’ (2000) 20(1) Legal Studies 71.

16 Puay San Toh and Stanley Yeo (n 3) 389-391.

17 The Singapore Hindu Centre subscribes to the view that a person is performing a good deed and fulfilling his moral obligations when helping to end a painful life: Lee Hui Chieh and April Chong, ‘No “Blessings” for euthanasia’ (The Straits Times, 4 November 2008). <http://www.asiaone.com/News/the%2BStraits%2BTimes/Story/A1Story20081104-98169.html> accessed 21 June 2013.

18 The Secretary-General of the Singapore Buddhist Federation has spoken out publicly against VAE: ibid.

19 The National Council of Churches of Singapore and the Catholic Archbishop of Singapore have publicly declared their opposition to VAE: April Chong, ‘Singapore debates where to draw the line for laws on assisted dying’, (The Straits Times, 4 November 2008). <http://www.asiaone.com/Health/News/Story/A1Story20081110-99473. html> accessed 21 June 2013.

20 The Islamic Religious Council has publicly expressed its opposition to VAE and PAS. April Chong, ‘Muis says ‘no’ to euthanasia’, (The Straits Times, 8 November 2008). <http://www.asiaone.com/Health/News/Story/A1Story20081108-99167. html> accessed 21 June 2013.

However, PAS supporters contend that the decriminalisation of PAS should not be influenced by religious considerations.21 First, many Singapore residents – 17% of the resident population - are not religious.22 Second, Singapore is a pluralistic society characterised by a diversity of religious beliefs. Individual views regarding end-of-life decisions should be respected; this is affirmed by the freedom of religion granted by Article 15 of the Singapore Constitution. Third, religious views about end-of-life decisions are not uniform.

For instance, Muslims believe that a prolonged incurable disease is an expression of Allah’s will for the patient to undergo the test of suffering.23 In contrast, some Buddhists may support PAS as it enables a person to die in a calm state of mind; it provides better learning as compared to where one is in a pain-agitated state.24 Achieving a moral consensus in this debate is inexplicably complicated.

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The intrinsic value of life – the quality of life argument

The instrumental value of life holds the converse: some lives are not worth continuing. This is where the quality of life endured or anticipated is poor, whether because of disease, injury or disability.

“Dignity” here means being in full possession of human cognitive abilities;25 for instance, the capacity to value existence.26 The diminution of these powers results in a loss of dignity. In such circumstances, an obligation to act in the patient’s best interests arises.27 There is a consequentialist justification to maximise welfare; a life of suffering should be ended, especially when one can still do so with dignity.28 Its subscribers argue for PAS. 21 Puay San Toh and Stanley Yeo (n 3) 391.

22 Singapore Department of Statistics, ‘Census of Population 2010: Statistical Release 1 on Demographic Characteristics, Education, Language and Religion’. <http://www.singstat.gov.sg/news/news/press12012011.pdf> accessed 21 June 2013.

23 Vardit Rispler-Chaim, Islamic Medical Ethics in the Twentieth Century (EJ Brill, 1993) 95.

24 Peter Harvey, An Introduction to Buddhist Ethics (Cambridge University Press 2000), 296.

25 John Keown and Luke Gormally, ‘Human Dignity, Autonomy and Mentally Incapacitated patients: A Critique of Who Decides’ (1994) Web Journal of Current Legal Issue 5. <http://webjcli.ncl.ac.uk/1999/issue4/keown4.html> accessed 21 June 2013.

26 John Harris, ‘Consent and End of Life Decisions’ (2003) 29(1) Journal of Medical Ethics 13.

27 Tom Beauchamp and James Childress, Principles of Biomedical Ethics (7th edn, Oxford University Press 2013) 228-229.

28 James Rachels, ‘Euthanasia’, in Tom Regan (eds) Matters of Life

Harris29 and Singer30 have applied these ideas to incompetent patients31. Indeed, there appears to be a retreat from the intrinsic doctrine in such cases.32 Depending on their best interests life-preserving treatment may be withheld or withdrawn.33 The House of Lords case of Airedale NHS Trust v Bland also illustrates this. Bland was a patient in a persistent vegetative condition.

Medical opinion was unanimous that Bland’s condition was irrecoverable. Despite explicit references to the importance of the sanctity of life,34 there was implicit recognition that Bland’s life had fallen below a certain threshold – keeping him alive was not in his best interests. The court could not expressly adopt the quality of life ethic, for this would pave the way for legalising VAE. Notwithstanding such a retreat, there is no clear winner in the struggle between the intrinsic and instrumental doctrines in the law, whether in Singapore or in the UK. In the UK, assisted suicide is illegal under s 2(1) of the Suicide Act 1961. The consent of the Director of Public Prosecutions (“DPP”) is required for prosecution under s 2(4). The House of Lords in R (Purdy) v DPP35 accepted that the decision to seek assisted suicide could be protected under Article 8(1) of the European Convention of Human Rights and Fundamental Freedoms (Right to respect for private and family life); although it qualified that the interests of the state validated an interference with this right under Article 8(2).

In doing so, it overturned its previous conclusion in R (Pretty) v DPP36. As such, their Lordships found that the restriction on assisted suicide could not be justified. The existing UK prosecutorial policy guidance was unclear; thus, the DPP was compelled to promulgate specific guidance and Death: New Introductory Essays in Moral Philosophy (McGraw Hill 1993) 46-48.

29 John Harris, ‘The Philosophical Case against the Philosophical Case against Euthanasia’, in John Keown (eds) Euthanasia Examined (Cambridge University Press 1997) 41-42.

30 Peter Singer, Practical Ethics (3rd edn, Cambridge University Press 2011) 160-169.

31 Mental Capacity Act (Cap 177A, 2010 Rev Ed), ss 4 and 5.

32 Richard Huxtable, ‘Re B (Consent to Treatment: Capacity) A Right to Die or Is It Right to Die?’ (2002) 14 Child and Family Law Quarterly 343.

33 Mental Capacity Act (Cap 177A, 2010 Rev Ed), ss 3(5) and 6.

34 Airedale NHS Trust v Bland [1993] AC 789, 859.

35 [2009] UKHL 45.

36

[2001] UKHL 61.

regarding the exercise of prosecutorial discretion in assisted suicide cases. The resulting guidance provides that a lay person will avoid prosecution for assisted suicide if he is motivated wholly by compassion and provides only reluctant assistance to a competent adult.37 While some might view this approach as a pragmatic compromise between allowing and prohibiting assisted suicide, it is unsatisfactory. To operate as an effective guide, the law must be clear and consistent.38 In addition, the UK Parliament has rejected three attempts in the last decade, including the Assisted Dying for the Terminally Ill Bill (2005-2006), to change the law on assisted dying. The Commission on Assisted Dying, which was set up to review the legal and policy approach to assisted dying in England and Wales, concluded that the legal status of assisted suicide was “incoherent and inadequate”.39 This is indicative of the underlying irreconcilable ethical positions on the value of life. A moral compromise in the arena of assisted dying does not appear conceivable.

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The self-determined value of life – the autonomy argument

The self-determined value of life avers that an autonomous individual should be free to decide what can happen to his body. Respect for autonomy is one of the fundamental principles of bioethics.40 “Dignity” here refers to one’s desire of having a demise that is consistent with his personal values.41 A person’s decision is respected not because it is a good choice, but because it is his choice.42 Decisions about death are particularly deserving of respect; it is a form of “critical interest” that is central to a person’s identity.43 From this perspective, the prohibition of assisted suicide is a “form of tyranny”.44 Its adherents advocate PAS. The principle of self-determination is prevalent in 37 The Director of Public Prosecutions, Policy for Prosecutors In Respect of Cases of Encouraging or Assisting Suicide (2010). <http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy. html> accessed 21 June 2013.

38 Lon Fuller, The Morality of Law (Rev edn, Yale University Press 1969).

39 The Commission on Assisted Dying, Report (Demos 2012) 19.

40 Tom Beauchamp and James Childress (n 27) 11.

41 Emily Jackson and John Keown, Debating Euthanasia (Hart Publishing 2012) 10.

42 Antje Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’ (2003) 62(1) Cambridge Law Journal 203.

43 Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (Harper Collins 1993) 199-213.

44 Ibid 217.

the refusal of treatment/passive euthanasia cases.

In Singapore, the Advance Medical Directive Act (Cap 4A, 1997 Rev Ed) provides a system for competent adults to refuse life-prolonging medical treatment. Under s 3(1), any person of sound mind, who has attained the age of 21 and desires not to be subjected to the artificial prolongation of the dying process in the event of his suffering from a terminal illness, may at any time make an Advance Medical Directive (“AMD”).

However, the regard for self-determination is inconsistent in the law. Crucially, s 17 of the AMD Act states that (1) nothing in it authorises any act that causes or accelerates death as distinct from that which permits the dying process to take its natural course; (2) nothing in it condones, authorises or approves the abetment of suicide, mercy killing or euthanasia. The right to refuse treatment does not have as its corollary a right to insist on treatment;45 otherwise, doctors would have to provide lethal treatment on demand.46 There is a conflict between the intrinsic and self-determined doctrines. One has no “right to be assisted to die” by his own act or by the intervention of another, but has a “right to die” either by his own act or by refusing lifepreserving intervention by another.47 This makes “no ethical sense”,48 let alone any moral consensus.

There can never be an ethical consensus as to the debate on PAS. The elusive notion of “dignity” illustrates this. Both sides appeal to it. For opponents, “dignity” marks the special worth of humanity; it cannot be undermined. For proponents, “dignity” captures the way in which their lack of independence interferes with their sense of self.49 It is more dignified to die at a time and manner of their choice. These definitions cannot be reconciled.

Yet, none of the doctrines can individually provide an appropriate prism to evaluate end-of-life decisions. The key terms (“intention”, “omission”, “futile” and “burdensome”) on which the intrinsic 45 R (Burke) v General Medical Council [2005] EWCA 1003.

46 Sabine Michalowski, ‘Relying on Common Law Defence to Legalise Assisted Dying: Problems and Possibilities’ (2012) 0 Medical Law Review 6.

47 Brenda Hale, ‘A Pretty Pass: When is there a Right to Die’ (2003) 3(2) Clinical Medicine 145.

48 Peter Singer, ‘Ms B and Diane Pretty: A Commentary’ (2002) 28(4) Journal of Medical Ethics: 234.

49 Emily Jackson and John Keown (n 41) 10.

doctrine depends on “require further moral interpretation and invite dispute”.50 For instance, Harris argues that the moral differentiation between intended and merely foreseen outcomes relies on an incomplete account of moral responsibility.51 Indeed, R v Woollin52 held that if the outcome was foreseen as virtually certain to occur as a result of the individual’s actions, the jury are entitled to find that he intended the outcome – “oblique” intention as opposed to “direct” intention. Further, the “futility” or “burdensomeness” of treatment conceals an underlying moral judgement by the doctor; this smuggles in quality of life considerations.53 There are also inherent difficulties in the operation of the instrumental doctrine as a moral guide.54 When would suffering be “miserable” and who should be entitled to make that assessment?

The self-determined doctrine is also problematic.

First, death is the very antithesis of autonomy;55 all future autonomy is lost after death. Second, requests for AS may not be fully autonomous. The Royal College of Psychiatrists reported that many who sought a hastened death suffer depression and that the numbers fall by 99% once depression is treated.56 ARGUMENTS FOR DECRIMINALISATION The ethical dilemma is one that cannot be unravelled. A realistic approach towards the issue of whether assisted suicide should be legalised is more appropriate. By presenting and evaluating the main arguments for decriminalising PAS, this article will demonstrate why decriminalising PAS is the way forward.

50 Richard Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge-Cavendish 2007) 9-17, 22.

51 John Harris (n 29) 36-40.

52 [1999] 1 AC 82.

53 Robert Halliday, ‘Medical futility and the Social Context’ (1997) 23(3) Journal of Medical Ethics 340; David Price, ‘What Shape to Euthanasia after Bland? Historical, Contemporary and Futuristic Paradigms’ (2009) 125 Law Quarterly Review 152.

54 Richard Huxtable (n 50) 26.

55 Charles Foster, Choosing Life, Choosing Death: the Tyranny of Autonomy in Medical Ethics and Law (Hart Publishing 2009) 149.

56 The Royal College of Psychiatrists, Statement from the Royal College of Psychiatrists on Physician Assisted Suicide (2006) 6. <http://www.rcpsych.ac.uk/pdf/14.07.11%20Enc%2005.pdf > accessed 21 June 2013.

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Legal hypocrisy

The line the law draws between lawful and unlawful life-shortening practices is incoherent.57 It is illogical to prohibit physicians from hastening their patients’ death through PAS while allowing them to do so by giving life-threatening doses of painkillers under the doctrine of double effect, or by withholding life-prolonging medical treatment.

First, as mentioned earlier, when a physician knows that a side effect of the painkillers is that death will certainly be quickened, it is equivalent to intention in the criminal law. Second, why is PAS prohibited if AMDs are allowed? Opponents argue that while the withdrawal of life-prolonging treatment is an omission and allows death to take its natural course, PAS is a positive act which is an artificial cause of death. But this act/omission distinction is tenuous. Realistically, there is no actual difference between them for both hasten death; they share the same underlying premise that patients whose life have fallen below a certain threshold should be allowed to decide whether it is in their own best interest to be medically assisted to end their lives.58 Third, paradoxically, the lawful means of hastening a patient’s death will often result in a more prolonged and less peaceful death than the unlawful means.59 For example, where artificial nutrition is withdrawn, the patient will slowly starve to death. Fourth, the legal status of medical assistance in dying appears contingent upon whether the patient happens to be connected to a ventilator. This is discriminatory against patients whose suffering may be equally unbearable, but whose illnesses deprive them of access to the lawful means of ending their lives.60 Consistency in the law may, surely, only be maintained via the decriminalisation of PAS. (2)

Practical considerations

First, legalising PAS enables proper regulation.

The illegality of assisted dying means that it will inevitably be practised ‘underground’;61 this is 57 Emily Jackson, ‘Whose Death is it anyway? Euthanasia and the Medical Profession’ (2004) 57(1) Current Legal Problems 415-442.

58 Puay San Toh and Stanley Yeo (n 3) 386-388.

59 James Rachels, ‘Active and Passive Euthanasia’ (1975) 292 New England Journal of Medicine 79-80.

60 RG Frey, ‘Distinctions in Death’ in Gerald Dworkin, RG Frey, and Sissela Bok (eds) Euthanasia and Physician-Assisted Suicide: For and Against (Cambridge University Press 1998) 36-38.

61 RS Magnusson, ‘Euthanasia: Above Ground, Below Ground’ (2004) 30 Journal of Medical Ethics 441-446.

definitely not in the best interests of patients.

Admittedly, the fact that something undesirable occurs outside of the law is not a good reason for legalising it. But if assisted dying occurs anyway and that it is sometimes justifiable on compassionate grounds, then regulated assisted dying is a much better option.

Second, the decriminalisation of PAS enables patients to have access to the best assistance in ending their own lives. This prevents patients from adopting inappropriate suicide methods which result in painful and undignified deaths. In fact, this approach would create a “comfort blanket” for patients.62 Third, the arguments against decriminalising PAS largely commit the slippery slope fallacy. PAS opponents often contend that the decriminalisation of PAS would lead to the legalisation of something which is more widely opposed such as VAE.63 This is usually made in two ways: 1. As a matter of logic, it would be hard to restrict access to certain fixed situations or to oppose the case of VAE if PAS was permitted. If the justification is autonomy or suffering, there is no reason to restrict access to the terminally ill.64 Likewise, there is also no reason to prevent patients from desiring a more efficient method of dying. A study in the Netherlands found that complications, such as vomiting, were much more common in cases of assisted suicide than in those of euthanasia.65 2. As a matter of practice, safeguards would not be effective in either restricting access to certain fixed situations or ensuring that there is no euthanasia. To avoid burdening their families, the vulnerable may feel 62 Emily Jackson and John Keown (n 41) 44.

63 John Keown (n 11) 70-80.

64 Felicia Ackernmann, ‘Assisted Suicide, Terminal Illness, Severe Disability, and the Double Standard’, in Margaret Battin, Rosamond Rhodes and Anita Silvers (eds), Physician Assisted Suicide: Expanding the Debate (Routledge 1998) 149-160; Richard Huxtable and Maaike Moller, ‘”Setting A Principled Boundary”? Euthanasia as a response to “Life Fatigue” (2007) 21(3) Bioethics 121-122.

65 Johanna Groenewoud, Agnes van der Heide, Bregie Onwuteaka-Philipsen, Dick Willems, Paul van der Maas and Gerrit van der Wal, ‘Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands’, (2002) 342(8) New England Journal of Medicine, 551-556.

pressured into a “duty to die”.66 The need to save time and resources may also incline doctors towards engaging in euthanasia.67 Indeed, these concerns have been echoed by supporters of the Dutch system.68 More significantly, these concerns have constituted the main reasons behind the objections of expert committees, Supreme Courts and professional medical associations across Britain, Canada and the US.69 These include the House of Lords Select Committee on Medical Ethics, the Canadian Supreme Court in Rodriguez v. British Columbia (Attorney General)70 and the American Medical Association.

However, it is ambivalent whether such concerns are realistic. Both PAS opponents and supporters have referred to empirical evidence from other jurisdictions such as the Netherlands71 and Oregon72.73 These have been interpreted in different ways;74 while opponents argue that statistics from these countries illustrate their concerns, supporters maintain that these countries demonstrate the possibility of a well regulated regime. The nature of these slippery slope arguments is speculative. With strict regulations and safeguards, the decriminalisation of PAS can avoid them. For instance, imposition of safeguards such as a compulsory psychiatric examination of the patient can address concerns that a patient’s choice could be improperly influenced by depression or unscrupulous family members.75 66 John Hardwig, ‘Is there a Duty to Die’ (1997) 27 Hastings Center Report 34-42.

67 Luke Gormally, ‘Euthanasia and Assisted Suicide: 7 Reasons Why They Should Not Be Legalised’ in Donna Dickenson, Malcolm Johnson and Jeanne Katz (eds) Death, Dying, Bereavement (2nd edn, Sage 2000) 287.

68 John Griffiths, Helen Weyers and Maurice Adams, Euthanasia and the Law in the Netherlands (Amsterdam University Press 1998) 298.

69 John Keown (n 11) 191-213.

70 [1993] 3 SCR 519.

71 The Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 allows for VAE and PAS 72 The Death with Dignity Act 1994 permits PAS. 73 John Keown, ‘The Law and Practice of Euthanasia in the Netherlands’ (1992) 108 Law Quarterly Review 51-78; Peter Singer, ‘Voluntary Euthanasia: A Utilitarian Perspective’ (2003) 17(5-6) Bioethics 526-541.

74 Margaret Battin, Agnes van der Heide, Linda Ganzini, Gerrit van der Wal, Bregje Onwuteaka-Philipsen, ‘Legal Physician-assisted dying in Oregon and the Netherlands: Evidence concerning the impact on patients in “vulnerable” groups’ (2007) 33(10) Journal of Medical Ethics 591-597; Penny Lewis, ‘The Empirical Slippery Slope From Voluntary to Non-voluntary Euthanasia’ (2007) 35(1) Journal of Law, Medicine & Ethics 197-205.

75 Puay San Toh and Stanley Yeo (n 3) 393.

Fourth, an additional worry is that legalised PAS would undermine the ethical integrity of the medical profession and adversely impact the doctor-patient relationship.76 PAS opponents contend that physicians who perform PAS would violate the Hippocratic Oath. Yet, is refusing to accept the validity of a patient’s preference for an assisted death a way of gaining his trust? If it is accepted medical practice to starve a patient to death by removing their feeding tubes, it would not be wrong to suggest that achieving the same outcome in a more efficient method is compatible with the basic principles of medical ethics. Besides, administering painkillers akin to poison, charging consultation fees, and performing surgeries all violate the original version of the Oath.77 It would be inconsistent to permit these acts, and yet prohibit PAS. Death does not signify the failure of the physician; the role of the physician is more than a mere healer. As Manga puts it, the physician’s task should encompass three goals: “healing, promoting health and helping patients achieve a peaceful and dignified death”.78 A FORMULA FOR PAS LEGISLATION IN SINGAPORE Setting out a formulated legislation for adoption in Singapore is beyond the scope of this article. In this regard, Toh and Yeo offer plausible legislation for adoption in Singapore based on the most suitable features of the regulatory models used in the Netherlands, Oregon and the Northern Territory of Australia – jurisdictions which have legalised PAS. The thrust of their drafted statute is that PAS should be permitted in circumstances where terminally ill patients face imminent death, suffer unbearably, and believe that there is no other reasonable solution for their situation79.

A patient will only be eligible for PAS if he suffers from a terminal illness which, according to reasonable medical judgement, is likely to result 76 Leon Kass and Nelson Lund, ‘Physician-assisted Suicide, Medical Ethics and the Future of the Medical Profession’ (1996) 35(1) Duquesne Law Review 401.

77 Puay San Toh and Stanley Yeo (n 3) 392.

78 Pranlal Manga, ‘Euthanasia and Medically Assisted Suicide – The Case for Legalising Physician Assisted Suicide’ (2001) 20 Journal of Medicine and Law 455.

79 Puay San Toh and Stanley Yeo (n 3) 381.

in death within six months without extraordinary life-sustaining treatment. The definitions of terms such as “terminal illness” and “extraordinary lifesustaining treatment” can be adopted from s 2 of the AMD Act. Such a restriction on the patient’s health condition limits PAS to only the cases in most need. This safeguard also reduces fears of a slippery slope.

The patient should also be required to receive palliative care before PAS is permitted, unless he decides that palliative care was not a reasonable solution for him. This simultaneously ensures patient-autonomy and that the request for PAS is not the product of inadequate medical care.

The features of the suggested legislation also include, inter alia: (1) Respect for the medical profession by allowing an unwilling physician to transfer the PAS case to another physician; (2) A requirement for physicians to act in accordance with the same standard of care expected of other physicians80; (3) A requirement for the physician’s physical presence when the patient self-administers the lethal medication; and (4) The involvement of an experienced consultant physician and a psychiatrist, for example, to ensure the voluntariness of the patient’s request.

CONCLUSION Lord Hope paints the ethical dilemma which many jurisdictions across the world faces in grasping with the issue of assisted dying. Admittedly, such a change in law may be contentious. But there can never be a principled agreement as to whether PAS should be legal. The time has come to seek a pragmatic approach.

80

Bolam v Friern[1957] 1 WLR 582.

Mei Shi is an Associate in Rajah & Tann’s Corporate Banking & Finance Practice Group. She graduated from the University of Bristol in 2009 and was admitted to the Singapore Bar in 2011 after spending a year of training with Photographed by Zachary Tan

LIFE AT RAJAH & TANN

by Ho Mei Shi As cliché as it sounds, the motto of an Associate at Rajah & Tann should be “expect the unexpected” – a “typical” week as an Associate at Rajah & Tann is one which is full of surprises. Each week’s happenings are conditional on a number of factors, namely the general activity in the market, the department and how the planets are aligned.

I work closely with my team on a myriad of transactions ranging from vanilla transactions to more complex ones spanning multiple jurisdictions, with a wide range of high calibre clients. This gives me exposure to high profile transactions whilst providing me with the opportunity to take full responsibility in smaller ones. In addition, Rajah & Tann’s regional expansion has provided me with the privilege of working closely with our counterparts in various jurisdictions in Southeast Asia. In many ways, this keeps life at Rajah & Tann interesting and definitely keeps me on my toes.

With such exciting deals, the deadlines and work can no doubt be demanding. However, being able to rely on the support of my team makes the challenge much more bearable and often, enjoyable.

The majority of what I know about banking and finance has been learnt on the job. A typical transaction would entail drafting and negotiating various documents to suit the commercial needs of the parties, attending internal and client meetings and, sometimes, going on business trips – most of which require skills which I did not possess when I first joined Rajah & Tann. Although the learning curve has no doubt been steep, guidance from an approachable team has made it much more manageable. The firm has managed to achieve the delicate balance between providing sufficient guidance

and giving us the freedom to develop our personal style.

For a firm of its size, Rajah & Tann sets itself apart by its collaborative culture. Importantly, the firm as a whole has a genuine interest in mentoring each Associate and you don’t get the feeling that you are a mere cog in the wheel. This is shown by the Partners not only constantly trying to engage us in constructive feedback sessions, but also in the interest they take in our professional development. For example, to complement the exposure received from transactional work and to provide a more holistic understanding of international banking and finance law, my fellow Associate and I were recently given the opportunity to attend a Syndicated Loan Conference in London, organised by the Loan Market Association.

Working at Rajah & Tann entails much more than simply slaving away at the keyboard. Since joining Rajah & Tann in 2010, I have enjoyed being on the organising committee of various firm events. Through these events, it is evident that Rajah & Tann takes the saying “all work and no play makes one a dull Associate” very seriously. This is clear from the emphasis on firm wide events such as our weekly lawyers’ lunches, fortnightly lawyers’ drinks sessions and firm and practice group trips.

Thankfully, amidst the hustle and bustle of work, the question of where to go for lunch is often the subject of intense discussions in the run up to lunch hour. Indeed, the ability to make such decisions under pressure is an essential skill in legal practice!

INTERNATIONAL ARBITRATION HUB: HOW FAR HAS SINGAPORE COME? This article discusses Singapore’s meteoric rise as an arbitration hub and offers a critical analysis of the pro-arbitration approach.

by Goh Ee Ling

Durham University

Once described as ‘an example of a jurisdiction naïve of the needs of international commercial arbitration’1, Singapore has emerged as the regional leader of commercial arbitration in Asia.2 In just 25 years3, there have been numerous 1 Professor Arthur von Mehren, in Cavinder Bull, ‘A Hotbed for Arbitration Talent’ Business Times (Singapore, 18 May 2011) 2 Queen Mary, University of London and White and Case LLP, ‘International Arbitration Survey 2010: Choices in International Arbitration (Corporate Attitudes/ Empirical Research)’ < http://www.arbitrationonline.org/docs/2010_InternationalArbitrationSurveyReport.pdf> accessed 2 May 2013 3 SIAC, ‘Facts & Figures of Singapore as an International Commercial Arbitration Hub’ <http://www.siac.org.sg/index.php?option=com_ content&view=article&id=52&Itemid=72> accessed 13 May 2013

legislative and structural developments as well as pro-arbitration jurisprudence adopted by courts.

This has cemented the fundamental appeal of Singapore as a commercial arbitration hub to ‘men of commerce’ all over the world.4 This article will trace and examine the city-state’s efforts to nurture an arbitration-friendly environment through case law guided by a modernised legislative framework, arbitration instruments and institutional infrastructure.

4 Justice Quentin Loh, ‘Salient Features of International Arbitration in Singapore’ (24 February 2011) SAL Conference Developments in Singapore Law 2006-2010: Trends and Perspectives

While Singapore has risen meteorically as a commercial arbitration hub, it is crucial that the city-state continues to make consistent strides in this international plane, which is traditionally dominated by ‘thinkers from the West’. This can be done by harnessing potential areas of growth, re-examining its pro-arbitration climate and keeping up with its legislative framework. The first part of this article will focus on Singapore’s rise as an arbitration hub, while the second will offer an analytical viewpoint with regards to the proarbitration approach adopted by the judiciary.

SINGAPORE’S DEVELOPMENT AS AN INTERNATIONAL COMMERCIAL ARBITRATION HUB Arguably, the establishment of the Singapore International Arbitration Centre (“SIAC”) and the enactment of the International Arbitration Act provided the core pillar of Singapore’s development in the arbitration sector. The SIAC was seen as a neutral and practical solution, sensitive to the needs of the business community by ‘offering speed, cost and flexibility.’5 At the same time, it provides a full-fledged service of facilities, panel of accredited arbitrators and administrative support with its own body of Arbitration Rules.6 Today, SIAC is housed in Maxwell Chambers with other eminent organisations such as the International Chamber of Commerce, World Intellectual Property Organisation, and prominent chambers from London.7 Thus when a dispute such as a cross-jurisdictional intellectual property issue arises, parties can expect to receive the appropriate assistance and support expected of a truly international dispute resolution venue.

8 On a domestic level, the welcoming of these outstanding dispute resolution institutions to tackle increasingly complex arbitration cases mirror Singapore’s ambition to be a leading 5 Justice VK Rajah, ‘Opening Address’ (24 February 2011) SAL Conference Developments in Singapore Law 2006-2010: Trends and Perspectives 6 Warren B. Chik, ‘Recent Developments in Singapore on International Commercial Arbitration’ (2005) 9 SYBIL pp.260 7 Professor Michael Pryles, ‘Singapore: The Hub of Arbitration in Asia’ < http://www.siac.org.sg/index.php?option=com_content&view=article&id=405:singapore-the-hub-of-arbitration-in-asia&catid=56:articles&Itemid=171> 7 May 2013 8 Tan Chuan Thye and Timothy Coke, ‘Singapore: The future global arbitration hub for Asia’ Business Times (Singapore, 28 October 2009)

international commercial arbitration hub. On an international level, Singapore can be seen as renewing its commitment to being a leader and demonstrating its maturity in the field of international arbitration.

Further, the use of Model Law signaled that domestic courts no longer had to confine themselves to English court decisions in interpreting arbitration legislation and practices.9 This was crucial as it allowed local courts to develop a margin of discretion when deciding cases, which proved a pragmatic move, better adapting the system to suit varying commercial arbitration cases unique to Singapore.

As a result, there has been an impressive upward trend – a 224% increase in arbitration cases handled from 2000 to 2011. A breakdown of the industry sectors revealed extensive arbitration usage in the commercial and construction sectors, followed by trade and the maritime industry. It is particularly notable that the caseload for Singapore maritime arbitrators has been rising steadily, with the largest case valued at $250 million.10 Given the nation’s robust shipping industry, it is thus opportune that the Singapore Chamber of Maritime Arbitration is contemplating an expansion of its board of directors to include a wider array of both international and domestic arbitrators.11 Further, support for this expansion can be drawn from the fact that the region is a heavyweight which Singapore currently represents, as it is one of the three arbitration centres in the world, and the only country in Asia to use the Dispute Resolution Clause on the Baltic and International Maritime Council (BIMCO) owned documents.12 In choosing the lex arbitri, important non-legal factors come into play. Arbitrators are attracted to a safe, politically stable and comfortable environment equipped with sound 9 Lawrence Boo, ‘The Law & Practice of Arbitration in Singapore’ (Workshop IV Paper III) (Singapore: ASEAN Law Association, December 2003) 10 Lynn Kan, ‘Rising caseload for maritime arbitration’ Business Times (Singapore, 21 March 2012) 11 Tengku Noor Shamsiah Tengku Abdullah ‘Singapore retains its position as the busiest port in the world’ (20 March 2012) < http://maritime. bernama.com/news.php?id=653455&lang=en> accessed 15 April 2013 12 Lynn Kan, ‘Singapore becomes a Bimco shipping arbitration centre’ Business Times (Singapore, 21 November 2012)

communication and logistical infrastructure, especially when an arbitration hearing could range from weeks to months. 13 These are all strong pull factors observed in Singapore, which offers much neutrality and government support. Undoubtedly, Singapore is the light on the arbitration hill to which many are drawn.14 A PRO-ARBITRATION CLIMATE In tandem with burgeoning local infrastructural developments, a central judicial development was the appointment of three High Court judges, Justice Belinda Ang, Justice V.K. Rajah and Justice Judith Prakash in 2003 to hear arbitration matters brought before the High Court. This is in recognition of the importance and relevance of arbitration in the domestic dispute resolution landscape.

Early cases such as Win Win Nu15, illustrate the courts’ clear jurisprudence in determining arbitration cases by adopting common-law principles such as the reasonableness test. Here, domestic courts established, for the first time, that there was a general duty of confidence applying to information produced during arbitral proceedings that could not be disclosed outside of these appointments, except where it was ‘reasonably necessary to do so’ in the interest of the public.

Confidentiality is often regarded as a hallmark of arbitration – a closed and private process where parties reach a binding and enforceable outcome in order to avoid negative publicity. Further, disclosure of such materials could expose trade secrets that negatively impact business plans.16 Therefore, the ‘reasonableness’ component allows the court to conduct a balancing act, weighing between confidentiality afforded to private parties on one hand, and disclosure of information on the other hand. Such disclosure may be ordered in court proceedings where the best access to evidence is required. Considering these factors, domestic courts are thus more inclined to 13 Chia Ho Choon, ‘Singapore thrives as arbitration seat in Asia’ Business Times (Singapore, 7 August 2012) 14 Peter Megens, ‘Singapore arbitration and the courts: quo vadis’ (2012) 15 Mnayma Yaung Chi Oo Co Ltd v Win Win Nu and Another [2003] 2 Sing L R 547 16 -

preserve the confidential nature of the contractual dispute settlement agreement and derogate only in exceptional circumstances, such as when an arbitrator has acted in bad faith.

However, an observed recurrent theme is the in favourem approach of courts towards arbitration.

The case of Insigma Tech Co Ltd v Alstom Tech17 concerned a novel legal issue of whether an arbitration agreement may validly provide for one arbitral institution to administer an arbitration under the rules of another arbitral institution.

Here, the Court of Appeal gave effect to parties’ evinced intention to resolve disputes by arbitration, ‘even if certain aspects of the agreement might be ambiguous, inconsistent or incomplete’18 ie. a hybrid arbitration agreement.19 This approach adopted is analogous to the principle of effective interpretation, which states that if in doubt, one should ‘prefer the interpretation which gives meaning to the words, rather than that which renders them useless’20, thus giving importance to a universally-recognised rule of interpretation.

Although this approach of enforcing an arbitration agreement, which required the SIAC to administer an arbitration governed by ICC Rules, may be considered as “pathological” in other jurisdictions21, this can be construed as the Court’s desire to preserve and give effect to parties’ interest in resolving the dispute.

Similarly, this in favourem approach was also observed in Quarella SpA v. Scelta Marble Australia Pty Ltd22 where an error of law or fact, will not allow courts to simply set aside an arbitral award.23 Together with PT Prima v Kempinski24, the above decisions significantly extend a recent line of Court decisions favourable to arbitration.

This illustrates that domestic courts will generally refrain from intervening with the arbitral tribunal’s 17 [2009] 3 SLR 936 18 Halsbury’s Laws of Singapore, Vol 2 (LexisNexis, 2003 Reissue, 2003) para 20.017 19 Rajah Bose and Ashish Chugh, ‘Crossing the Hurdles of International Arbitration in Asia’ [October, 2010] Law Gazette 20 Emmanuel Gaillard & John Savage, Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, 1999) pp. 258 21 Lucy Reed, Mark Mangan and Darius Chan, ‘Follow the leader – Rise of Singapore as a world-class arbitration centre’ (2 Nov 2012) Legalweek 22 [2012] SGHC 166 23 Pryles, n(7) 24 [2012] SGCA 35

decision, unless it qualifies under exceptional circumstances, such as decisions which conflict with public policy.25 As observed, courts generally endeavor to enforce arbitral awards, a common trend in most modern jurisdictions that nurture pro-arbitration climates.

Thus, it can be said that the role of the court is to ‘support and not displace the arbitral process.’ 26 It was thus surprising that an exception was made to the benevolent approach adopted by the Courts, as manifested in the case of AJT v AJU27 which set aside an arbitral award. This was made on grounds that should the award be upheld, it would involve enforcing an illegal agreement contrary to public policy reasons. As further clarified by the Court of Appeal in AJU v AJT,28 public policy issues would pertain to either “exceptional circumstances” or “violation of the most basic notions of morality and justice”. Having established the exceptions, the Court decided that it was entitled to decide for itself whether the concluding agreement was illegal, and if so, whether the award should be set aside.29 In so doing, both the High Court and the Court of Appeal articulated an unusually interventionist approach in this case, displaying a proactive approach to uncovering illegality in agreements underlying an award.’30 This is an interesting and unorthodox development, as courts are generally reluctant to exceed arbitrators’ findings of no illegality, so as to display coherence with the public interest in the finality and decisiveness of awards.31 This appreciable ‘willingness to second-guess’32 the arbitral tribunal’s decision highlights how an arbitral award is not always final and binding. This is despite the fully enforceable award being one of the most attractive features of arbitration, since it allows parties to reach a decisive conclusion.

25 International Arbitration Act (Cap. 143A) 26 Tjong Very Sumito v Antig Investments Pte Ltd [2009] SGCA 41 27 AJT v AJU [2010] SGHC 201 28 AJU v AJT> accessed 3 May 2013 Case Interool of International Arbitration and k that Singapore has been maintaining, and the establishment [2011] SGCA 41 29 Megens, n(14) 30 Megens, n(14) 31 Robert Merkin and Johanna Hjalmarsson, Singapore Legislation Annotated (London: Informa, 2009) as cited in AJU v AJT [2011] at [16] 32 Mergens n(14)

The decision in AJU v AJT could mean that this instance of court intervention, which is the first of its kind, might not necessarily be the last. This can be construed as a ceiling to the pro-arbitration environment that Singapore has fostered, and might potentially deter potential arbitrations from taking place in Singapore.

CONCLUSION It is now ‘no longer unusual to hear plaudits for Singapore as an international commercial arbitration hub.’33 Since Singapore is now placed in constant comparison with established and recognised institutions such as the London Court of International Arbitration and American Arbitration Association34, the local arbitration sector cannot afford to rest on its laurels and must seek to continuously improve itself.

In this vein, improvements can be made in the following areas: Firstly, an equilibrium has to be reached between various competing interests, such as managing the consequences of a more interventionist approach by the judiciary, versus giving effect to parties’ intentions of a binding arbitral award and secondly, tightening up of the definition of public policy issues which could constitute an exception to the confidentiality requirement.

33 Cavinder Bull, ‘A Hotbed for Arbitration Talent’ Business Times (Singapore, 18 May 2011) 34 Queen Mary, University of London, School of International Arbitration and White and Case LLP, ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ < http://annualreview2012.whitecase.com/International_Arbitration_Survey_2012.pdf> accessed 3 May 2013

REGULATING BEAUTY This article examines the law’s role in regulating aesthetic procedures. It considers existing ethical issues and argues that existing measures need to be further tightened.

by Cheryl Aiden Teo University of Bristol

INTRODUCTION Internationally renowned for world-class medical facilities, Singapore has become a popular destination for patients seeking high standards of care and treatment1. An erosion of conventional notions of ‘natural’ beauty has gradually reduced the stigma commonly associated with cosmetic 1 Singapore received 374,000 healthcare visitors in 2005, according to Dr Jason Yap, director of Singapore Medicine (www. singaporemedicine.com)

surgery, rendering such procedures more socially acceptable. As a result, aesthetic medicine has become an extremely lucrative industry in Singapore, attracting both local and foreign patients. This article will discuss the normalisation and rising popularity of cosmetic procedures, the arising ethical concerns surrounding the practice as well as the insufficiency of current regulatory measures. It will further argue that these measures need to be further tightened to ensure the highest standards of patient care and safety, and uphold

Singapore’s sterling reputation as a leading international medical hub.

THE DEFINITION AND BACKGROUND While there is no internationally accepted definition of aesthetic practice, the 2008 Guidelines on Aesthetic Practices for Doctors currently adopts the following:

“Operations and other procedures that revise or change the appearance, colour, texture, structure or position of bodily features, which most would consider otherwise to be within the broad range of ‘normal’ for that person.”

Aesthetic or cosmetic procedures are carried out with the main objective of improving physical appearance rather than for medical purposes; it is for ‘medical enhancement’ rather than ‘medical necessity’. The practice of aesthetics is primarily concerned with maintaining, restoring or enhancing one’s appearance beyond the ‘normal’ level and towards a higher ideal of beauty. The advent of aesthetic medicine began with carrying out reconstructive surgery for patients with war injuries. Then, the 21st century saw a large paradigm shift where cosmetic surgery gained acceptance and pre-eminence. It became perceived by more of the public to be ‘absolutely fascinating’,2 offering boundless possibilities for enhancing one’s image and attaining a greater level of beauty and perfection or reversing the effects of ageing.

Historically controversial, cosmetic surgery has raised moral questions of the true necessity of such procedures, and whether medicine even ought to have a role in cosmetics, since the primary role of medicine is to heal and cure. Moral critics of the practice contend that the marketing of cosmetic procedures puts forward a singular construct of beauty and perfection, and in turn discount all other conceptions of beauty.3 This is clearly evidenced from the type of procedures extensively marketed at women: fillers, breast augmentation 2 Tan ‘Shifting Paradigms in Aesthetic Medicine & Surgery in Singapore- A Plastic Surgeon’s Perspective’ 2010: 1 3 Little, ‘Cosmetic Surgery, Suspect Norms and the Ethics of Complicity’ 1998:168

and weight-loss procedures such as liposuction collectively depict an ideal of the beautiful woman.

This induces a nuanced if not explicit pressure on women to strive towards this ideal. Little proposes that even if such surgeries are morally permissible, they should be approached with at least some sort of ‘moral hesitancy’4, adding that intensified scrutiny over the practice is therefore justifiable. However, it must be remembered that patients have a variety of motives for requesting cosmetic surgery and not all patients are purely motivated by vanity. Although these procedures are not generally considered a health necessity, strong proponents of the practice firmly believe that aesthetic medicine is a ‘social necessity’ 5 that helps to alleviate the suffering of patients albeit in a different way, for example, by correcting certain perceived ‘flaws ‘in their appearance that contribute to a very low sense of self-worth and self-esteem or render them the subject of cruel bullying.

Today, the demand for cosmetic surgery has risen dramatically, fuelled by the media as well as pop culture influences. The growing affluence of Singapore’s society as well as cutting-edge medical advances that promise minimal recovery time and a lower risk of complications have significantly contributed to the burgeoning demand for aesthetic procedures6. Consequently, the supply of such services has also increased. Cosmetic procedures that are ‘minimally invasive’ are simpler, less risky and boast a potentially large profit margin, sparking an interest in both medical and nonmedical practitioners alike. Surgeons untrained in the specialty, beauticians and spa operators have all begun to perform cosmetic procedures and treatments, for example, administering fillers and botox (botulinium toxin) to clients. The disparity in the level of training required of general practitioners (“GPs”) and that attained by certified plastic surgeons is a cause for concern considering the widespread provision of cosmetic treatment by GPs. According to the Ministry of Health (MOH), more than half of Singapore GPs are involved in some kind of aesthetic practice, ranging from 4 Little, 1998:169 5 Madam Susanne Noel, cited in Tan ‘Shifting Paradigms in Aesthetic Medicine & Surgery in Singapore- A Plastic Surgeon’s Perspective’ 2010: 1 6 Goh ‘The Need for Evidence-Based Aesthetic Dermatology Practice’ Journal of Cutaneous and Aesthetic Surgery, vol. 2(2), 2009: 65-71

fat grafting to chemical peels,7 but there are no verifiable figures to show that all the GPs meet the requirement of competence and certification. The current level of competence required of GPs fall short in comparison to plastic surgeons who have trained in the specialty for years8, which suggests that measures ensuring and requiring sufficient training need to be more firmly set in place.

High pressure advertising also plays a key role in driving the industry. Patients are enticed to take advantage of cost-saving (“two for one” offers) and time-limited discounts which indirectly encourage a culture of ‘needless consumption.’9 This use of pure marketing is unprecedented and unheard of in all other areas of medicine. These advertisements tend to downplay risks and exaggerate expected results of procedures, creating high expectations of results that doctors are incapable of delivering.

There are a few problems with this use of aggressive advertising to stimulate demand for aesthetic procedures. Firstly, such persuasive advertising exert an external pressure on patients’ decisionmaking process and may result in patients making rash decisions10. Secondly, it subverts the notion of informed consent by distorting or misrepresenting information given to patients and resulting in an asymmetrical understanding of the treatment and expected outcome between patient and doctor. There is an extremely subjective element to aesthetic medicine and the lines defining a successful and unsuccessful procedure is not as clear cut as in other branches of medicine.

It is therefore extremely crucial that aesthetic practitioners take deliberate caution to manage patient’s expectations and ensure that they do not promote results that they cannot deliver.

THE CURRENT LAW Generally, minimal legislation governs the industry; it is largely self-regulated. The aesthetic industry is required to comply with the Ethical Code and Ethical Guidelines and is additionally regulated by the 2008 Guidelines which classify aesthetic procedures according to their complexity 7 Poon and Pang ‘Revamp Rules for Cosmetic Surgery?’ The Straits Times, 13 June 2011 8 Poon and Pang 9 Goh, 2009: 66 10 De Sousa, ‘Concerns about cosmetic surgery’ Indian Journal of Medical Ethics, 2007:3

and availability of scientific evidence; define the minimum level of qualifications required (that of a certified doctor); and require that all doctors must have sufficient experience and obtain approval from the Singapore Medical Council (SMC) if they wish to carry out aesthetic procedures. The Guidelines serve as a yardstick to determine professional and ethical conduct of those performing aesthetic procedures and require that doctors perform such procedures under ‘appropriate, risk-adjusted regulatory oversight.’11 Any contravention of the guidelines and its requirements would render the physician liable for disciplinary action by the SMC, and may also establish the grounds for medical malpractice or professional negligence. A quasi-judicial body with statutory powers conferred by section 5 of the Medical Registration Act (Chapter 174), the SMC determines, regulates and acts as a watchdog over the practice, ethics, conduct and standards of medical professionals. The council comprising largely of members appointed by the MOH may find doctors guilty of misconduct, defined as “infamous conduct in a professional respect”, if they are found to have brought disgrace and dishonour to the profession and therefore impose fines, issue a letters of advice or remove a doctor from the registers.12 Under civil proceedings, doctors found to have breached their professional duty of care could also be found liable for damages under the Bolam test 13 which expects doctors to exercise the degree of skill and care of a reasonably skilled person in his or her field. Some common areas of medical negligence leading to cosmetic surgery claims include unexpected post-procedure scarring and infections. Recently, two GPs admitted negligence liability for the death of Franklin Heng, who died while undergoing a liposuction procedure from being administered an excess of sedative14.

The GPs will also be subjected to disciplinary proceedings by the SMC. The case has emphasised the need for stricter regulations in order to prevent 11 ‘Regulation of Aesthetic Practices in Singapore’ Information Note, Legislative Council Secretariat, p.5 12 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 13 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 14 Salma Khalik “Docs in Liposuction Death Admit Liability’ The Straits Times, 18/08/2012

the reoccurrence of similar negligence. In a move to tighten up rules following the case, doctors are now required to have consistently performed liposuction in order for their license to be renewed.

THE INSUFFICIENCY OF CURRENT REGULATORY MEASURES While this is a positive step to improve the public image of the industry, greater measures can be put in place to better protect patients. The current level of required accreditation has been criticised for being wholly insufficient15 and barely qualifying as proper and adequate training, especially when higher-risk procedures such as liposuction are being carried out. Although the current licensing rules provide a list of criterion to satisfy before doctors untrained in plastic surgery can offer liposuction services, the relatively quick process of obtaining certification casts serious doubts on whether the doctors are truly sufficiently trained in contrast to certified plastic surgeons who have trained and practiced in the specialty for several years. The accreditation requirements need to be tightened as the consequence of allowing inadequately trained doctors to perform liposuction and other similarly risky procedures could be fatal.

Medical professionals are ethically required to avoid harm to the patient16, which includes a duty to protect patient from physician-associated risks such as inexperience and incompetence17.

Insufficiently trained professionals create an unacceptable risk to patient health and safety.

This move to require higher levels of training is also necessary to guard against hubris, an overestimation of one’s ability. As practitioners untrained in plastic surgery gain more confidence in performing aesthetic procedures, they may eventually begin to toe the line and overstep the boundaries of their training, venturing into ‘realms that were hitherto under the purview of the plastic surgeons.’ 18 More invasive and complex procedures need to be tightly regulated to ensure 15 Poon and Pang, ‘Revamp Rules for Cosmetic Surgery? Plastic surgeons speak out against easy rules for aesthetic medicine’ The Straits Times 16 Beauchamp & Childress, 1994 17 Roubaix, 2011: 14 18 Tan ‘Shifting Paradigms in Aesthetic Medicine & Surgery in Singapore- A Plastic Surgeon’s Perspective’ 2010: 2

that practitioners trained in other specialties possess the specified training and skill to carry out the procedures successfully and safely.

In the field of aesthetic medicine, the law has a role to ensure the clarity of regulations, as well as set professional standards within the industry and provide a just system of checks and balances.

The recent landmark case against the SMC on an appeal by Dr Low Chai Ling19 cast a spotlight on the questionable disciplinary processes of the SMC and strongly suggests that it may be time for the creation of an external independent body to take over the role of the SMC. Currently, in disciplinary hearings, the SMC acts as “investigator, prosecutor, judge and jury”20. The conflict of interest inherent in these roles of the SMC is obvious and seriously undermines the regulatory watchdog’s impartiality and compromises the fair trial process. The establishment of an independent body would be valuable in terms of ensuring fairness and impartiality; however, it could pose its own set of problems as an added and costly layer of judiciary tribunal21 and would only work if it were integrated with the civil courts.

Furthermore, there is a danger that judges lack the highly specialised medical expertise and knowledge required for the role to be carried out effectively and fairly and so a well-developed system of professional self-regulation may work better instead22. An objective external regulator whose main objective is patient protection would also more effectively act as a safeguard to ensure that patient safety is always prioritized before profit rather than medical professionals who have personal interests to protect. Ultimately, it will be for Parliament to legislate and decide whether an independent body should be set up.

The need for tighter regulatory rules arises from the potentially widespread health and social risks that aesthetic medicine poses. While cosmetic surgery may not be considered a health necessity, it has lifelong implications for patients. Even minimally invasive treatments pose risks of 19 Low Chai Ling v Singapore Medical Council [2012] SGHC 191 20 Thirumoorthy, cited in Khalik ‘Medical Council; judge, prosecutor, jury’ The Straits Times, 30 December 2012 21 Tay, cited in Khalik ‘Medical Council; judge, prosecutor, jury’ The Straits Times, 30 December 2012 22 Chin ‘The Role of the SMA in Professional Self-Regulation’, Forum on Professional Self-Regulation, 2008

complications and can cause permanent damage.

For example, lasers and IPL can cause burns, pigmentation problems, and allergic reactions can be irreversible.

Under the doctrine of informed consent, it is the duty of the doctor to ensure that patients under his care are adequately informed about the benefits, nature and extent of risks, as well as alternatives before they agree to a procedure. The failure to disclose information about inherent and material risks may expose a doctor to negligence liability, as in Chester v Afshar 23and Sidaway v Bethlem24. Informed consent is the ‘cornerstone’25 of respecting patient autonomy, and practitioners must not withhold any information about risks from patients if such knowledge may deter patients26. This is especially crucial given the elective nature of cosmetic surgeries. Roubaix puts forward an interesting thought that honouring autonomy might become problematic as operative risk increases, conflicting with principles of nonmaleficence. It is thus even more pressing that informed consent is wholly and meticulously given as the foundation for respecting autonomy.

However, the traditional notion of caveat emptor, ‘let the buyer beware,’ indicates that the patient is responsible for doing his research and educating himself on the associated risks before consenting to it. Adhering to such a principle would be equating the provision of aesthetic medicine to the provision of common goods. The traditional doctor and patient relationship is replaced by that of purely contractual one, and in a claim for medical negligence, the patient could be afforded less protection by the law in proving a right to informed consent and the full disclosure of all information relevant to treatment because the relationship is no longer a fiduciary one. As much as the aesthetic medicine industry is driven largely by consumers, the heart of the practice remains rooted in the principles of medicine, and not only must practitioners adhere to and go beyond the ‘do no harm’ principle, the best interests of the patient and the conferral of a positive benefit on the patient need to remain the foremost priority.

23 Chester v Afshar [2004] UKHL 41 24 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 25 Roubaix, 2011: 12 26 Roubaix, 2011:14

“Allowing aesthetic surgery to work freely according to market categories will likely render the practice no more than a beauty industry aiming to sell a service rather than to offer help to patients.”

The concept of the patient as a pure consumer is a misguided one that has altered the relationship between doctors and patients, shifting from covenantal to contractual and leading to an unacceptable deviation from usual standards of practice. 27 Patients are increasingly offered a blinding array of aesthetic procedures to choose from, of which some are in the early stages of development and are not yet supported by solid scientific evidence.

Despite having little to no proven efficacy, these cosmetic treatments can often be extremely costly to patients. The guidelines have made attempts to prevent this by requiring that doctors performing low-evidence procedures only charge their patients “a fair fee” 28 that accurately reflects the cost of the procedures and the cost of administering them. Doctors are additionally required to retain financial records relating to these procedures to be inspected if the need arises. This is a positive step towards keeping doctors accountable and ensuring that patients are not overcharged for low-evidence procedures. This requirement does not extend to aesthetic treatments and procedures that are considered by expert opinion to be wellestablished. Extending the requirement would better protect the financial interest of patients but would severely cripple free market movement as well as impose a great administrative burden on doctors that is not entirely necessary.

If regulations are far too strict, it may lead to the adoption of defensive practices, and hinder or prevent the efficient performance of procedures as doctors take even greater precaution to ensure their compliance with the extensive measures.

Thus, a fair balance between allowing doctors to freely practice what they are professionally trained to do and imposing tighter regulations to protect patients needs to be struck. Admittedly, this is a very fine balance that perhaps can only 27 28

Campbell, Overview of Professional Self Regulation, 2008: 4 Guidelines on Aesthetic Procedures for Doctors, 2008: 5

be achieved with regular revisions and fine-tuning of the Guidelines to develop in tandem with the emerging practice and achieve greater clarity.

Although the guidelines make provision for the varying levels of available medical evidence to support the efficacy of aesthetic treatments and procedures29, they are vague and fail to fully take into account the intricacies and individual risks associated to specific treatments. In 2011, two aesthetic doctors, Dr Low Chai Ling and Dr Georgia Lee, were initially found guilty of administering low-evidence treatments not generally accepted by the medical profession.

The Court of Appeal set aside the decision of the Disciplinary Committee on Dr Low’s appeal and held that Dr Low could not be found guilty of professional misconduct retrospectively and it would be unjust to do so since there were several other doctors offering the same treatments that were not charged. Furthermore, SMC’s stance on aesthetic treatments was ‘unclear as to what was permissible’.30 The judgment pinpointed the lack of clarity of the definitions within the guidelines, pointing out that the measures of professional conduct were unsatisfactorily vague and failed to keep in step with the rapidly evolving field of aesthetic medicine. An issue that was highlighted was that Article 19 of the guidelines imposing an injunction on doctors charging “highly profitable fees” did not provide clear guidance on what appropriate fees would be. The case exhorted the pressing need for the SMC to review the guidelines as the effectiveness of aesthetic treatments cannot always be measured quantitatively and could be “a trap for the unwary.” 31 Next, the guidelines ban the advertising of lowevidence procedures. It can be argued that although a complete ban on advertising of all procedures is unfeasible, it would only be beneficial to establish an advertising code of conduct to ensure the appropriate marketing of cosmetic procedures.

This would strive to maintain the interests of both doctor and patient, by allowing doctors offering cosmetic surgery to still promote their services but protect patients from overly aggressive advertising 29 2008 30 31 [66]

Appendix, Guidelines on Aesthetic Procedures for Doctors, Low Chai Ling v Singapore Medical Council [2012] SGHC 191 Low Chai Ling v Singapore Medical Council [2012] SCHC 191,

bordering on soliciting. Although aesthetic practitioners can be perceived as providing a service as a business, Roubaix points out that this understanding of aesthetic doctors as ‘tradesmen’ rather than ‘healers meeting the need of the sick’ undermines the respect that society accords to the profession32. Aesthetic practice remains a branch of medicine and thus those seeking cosmetic procedures remain as patients first and foremost and the motive for doctors performing any cosmetic procedure should never be for financial gain. In the words of Dr Teoh, “the profit motive should not come into the patient safety equation” at all, in ensuring the safe administration of aesthetic medicine33. More stringent regulatory controls could help to achieve this, for example by guarding against misleading advertisements and preventing the misrepresentation of costs involved and the understatement of potential risks.

However, opponents of tighter regulatory rules prefer a self-regulatory approach, based on the view that as a consumer-driven industry, market forces would naturally drive up service standards and keep prices fair and competitive.

A COMPARISON The issues and controversy surrounding aesthetic medicine are not unique to Singapore. In the UK, where the industry is worth £2.3 billion a year and expected to exceed £3 billion by 2015, 34 the PIP breast implant scandal has called for tighter regulations of the booming industry. An independent review headed by Sir Bruce Keogh was commissioned which proposed stringent controls of the industry, including the requirement of formal qualifications for businesses wishing to provide cosmetic procedures and a registry of practitioners and companies with proper accreditation. The reforms aim to offer patients more protection and a safety net that presently only covers procedures under the NHS and not those provided privately. Furthermore, it recommends the implementation of safeguards such as a fund to guard patients against companies providing 32 Roubaix, ‘Beneficence, non-maleficence, distributive justice and respect for patient autonomy- reconcilable ends in aesthetic surgery?’, Journal of Plastic, Reconstructive & Aesthetic Surgery, vol. 64, 2011:14 33 ‘Vanity fair’, 2010, http://www.medicalprotection.org/ singapore/casebook-may-2010/vanity-fair 34 Boseley, Sarah ‘Cosmetic surgery crackdown is needed, says NHS medical director’

cosmetic procedures that become insolvent and compulsory insurance to guard against procedures that go awry. The report concluded by highlighting the gaping hole in regulations with regards to administering fillers (a procedure used most commonly to smooth wrinkles), where patients undergoing the procedure are afforded no more than the level of protection and redress as when purchasing everyday items ‘like a toothbrush or a pen’. 35 The recommendations provide suggestions that can be applied to improving the standard of regulation in Singapore. At present, the guidelines only make provisions for doctors providing cosmetic surgery but do not regulate non-medical professionals such as beauticians who provide low-risk cosmetic treatments. There is no special provision to govern procedures performed by beauticians, although they can be subject to the Penal Code and sued for negligence in civil proceedings. However, ‘from a law enforcement point of view, there may be nothing to enforce until and when something bad happens’ which would already be too late.

36 The patient would already have sustained an injury and loss, which could possibly have been prevented if there were safeguards from the very beginning. Another key recommendation from the independent review that can be seriously considered is the setting up of a fund to protect patients in the event of service providers going bankrupt or failed procedures. This is necessary to afford patients proper redress for when things go wrong, and would improve public confidence in the industry when patients know that they would be properly protected and supported.

This recommendation is supported by Latham37, who proposes that the organisation should be an independent, government-funded umbrella organisation with representation and powers of registration and inspection, rooted in specific legislation governing the cosmetic industry.

only. Wong suggests that perhaps legislation could be enacted to extend the coverage of the MOH to non-medical practitioners offering aesthetic treatments. 38 This would allow for a cohesive and comprehensive regulatory framework to better protect the public from unsafe practices.

It is however also important to ensure that the industry is not suffocated by measures that are too onerous and contribute to an overly paternalistic professional culture, which forsakes the respect for patient autonomy.

A CONCLUSION Aesthetic medicine is a firmly entrenched branch of medicine. Consequently, any deviation from the modern standard of care and service as normally expected in other branches of medicine is worrying and could potentially erode the trust and threaten the integrity and professionalism of the medical profession. The constantly evolving sector of aesthetic medicine has outpaced existing legislation, leaving a gap for the law to fill in order to ensure that practitioners adhere to ethical guidelines and sufficient protection of patient welfare.

Although society places implicit trust in the medical profession to regulate itself and comply with traditional professional standards, higher standards of regulation would increase patient confidence and help attract new patients. With patients who are well-protected by sufficient safeguards are confident in the profession, the industry would naturally thrive.

The guidelines and the Ethical Code work as essential tools to protect patient welfare and govern professional conduct in the aesthetic medicine industry only and thus regulate doctors 35 Boseley 36 Wong, ‘Regulating Aesthetic Practices’ President’s Forum 2008:12 37 Latham, 2010 ‘A poor prognosis for autonomy: self-regulated cosmetic surgery in the United Kingdom’ 38

Wong, 2008: 12

Josephine Tinsley is an Associate in the Finance and Projects Practice Group of Baker & Mckenzie. Wong & Leow, Singapore.

She graduated from the University of Oxford in 2004 and worked in the City of London for four years prior to completing her GDL and LPC at Nottingham Law School in 2010. Josephine Ashurst LLP in London and Madrid and joined Baker & Mckenzie. Wong & Leow as an Associate in 2012.

Photographed by Zachary Tan

LIFE AT BAKER & MCKENZIE, WONG & LEOW, SINGAPORE

by Josephine Tinsley

I interviewed for my position as an Associate in the Finance and Projects team, Singapore, from Baker & Mckenzie, Madrid via video conference link. During the interview, whilst discussing power projects in South East Asia, one of the Principals emphasised to me the importance of a sense of humour in every day life.

This seemed to be the case even whilst negotiating coal power station documentation. From that moment it became clear to me that there was something different about this firm and I knew that it would be a good fit for me.

The advantage of training in the UK is that it is compulsory to rotate around several different practice groups over two years. This means that at the point of qualification, a trainee has a good idea about the practice area in which he or she wishes to specialise.

By the time I reached qualification I knew that I wanted a position within Projects and Energy. Consequently, the role in the Finance and Projects practice group (“F&P”) within Baker & Mckenzie. Wong & Leow was perfect for me.

The scope of work that F&P covers is wide, including banking, project finance, projects and energy contracts.

The projects we work on are large-scale, long-term infrastructure and utilities projects across the region.

Some examples are hydro-electric power plants in Indonesia, coal and gas power stations in Malaysia and Thailand, oil, natural gas and LNG supply and shipping around Singapore and South East Asia. This makes for a colourful and wide ranging scope of experience and we often find ourselves fluctuating momentarily between a wind farm pitch in Turkey, to palm oil supply contracts in Indonesia.

As the nature of our work suggests, we are a very international group, comprised of solicitors from all over the world, including Singapore, Indonesia, Malaysia, Australia, New Zealand, Canada and the UK. We deal with a variety of laws, especially English law, Singapore law and, with assistance from our colleagues in Jakarta, Indonesian law.

It is to be expected that we travel a lot as a group. As well as business travel, the firm organises many trips abroad for training purposes. There are retreats which give us the opportunity to meet our colleagues from our sister offices across Asia. In 2012 I attended a five day “Banking School” in Bangkok where I met colleagues from 14 of our Asian offices. In January of this year we were invited to go on an F&P Joint Office retreat to Ho Chi Minh City. The next planned retreat is a Singapore office weekend away in Hong Kong. Dinner and nights out are part and parcel of such trips.

During my ten months at the firm I have noticed that every person in F&P is respected and valued as an individual. I have never found work forced upon me, and, contrary to the culture of some law firms, the senior members of the team are considerate in remembering that you may have a life outside of the office. Whereas at another U.S. firm I know of, the undeclared motto was “Everybody’s Disposable”, at Baker & Mckenzie. Wong & Leow the motto is “Be Nice”.

The cross-jurisdictional nature of our team means that we are a richly diverse group made up of high-calibre, international (and nice) individuals. This all points towards a truly global professional experience.

CRIMINALISING HIV TRANSMISSION Singapore recently amended her laws regarding the transmission of HIV. However, in doing so, it may have removed consideration of certain vital factors.

This article seeks to explore said factors.

by Zachary Tan

University of Manchester

INTRODUCTION Policy makers and the judiciary are often faced with the tricky task of weighing the fairness of an outcome against the efficiency of the entire legal system. If a certain legislature allows for a thorough (and impliedly more fair) trial, it may come at the expense of the time of the courts that could be arguably put to use in more pressing cases. The topic of criminalization of the transmission of serious diseases is not exempt from this, and in fact highlights the delicate balance that has to be struck. This then poses the question, what are the factors that should be taken into account when trying someone for sexually transmitting a serious disease to others?

Sexually transmitted diseases range from chlamydia to hepatitis. These diseases, with the right treatment, can be cured or at least managed. However, perhaps the most widely feared of such diseases is the Human Immunodeficiency Virus (HIV).

If left uncured, it can lead to Acquired Immunodeficiency Syndrome (AIDS).

Without treatment, people typically survive for 3 years.1 This is perhaps the reason why such cases are treated with more weight and urgency by governments all around the world. Significant time and money is often invested in related education and prevention programmes. Indeed, HIV/AIDS is still the subject of nearly all such investigations and 1 Ministry of Health Update on the HIV/AIDS situation in Singapore <http://www.moh.gov.sg/content/moh_web/home/ diseases_and_conditions/h/hiv_aids.html>

prosecutions in the UK. 2

risk;

In Singapore, the infection of HIV and AIDS is granted an entire section of its own in the Infectious Diseases Act 19773, which has been recently amended. However, the amendment appears to eradicate considerations such as knowledge and consent. Worryingly, this change might result in an unjust result.

(b) he has undergone the necessary serological or other test and has ascertained that he does not have AIDS or HIV Infection at the time of the sexual activity; or

HIV IN SINGAPORE The issue at hand is one that is more relevant than it has ever been. The nation’s infection rate has doubled in the past 10 years, with sexual intercourse being the most common mode of transmission in Singapore.4. About 1 in 10,000 people were newly infected in 2006, compared with less than 0.5 in 1996, according to government statistics.5 As the virus becomes increasingly prevalent, the government has adopted measures to curb its spread. One such measure was the amendment of the Infectious Disease Act in June 2008.

Prior to the amendment of the Act, the stance was that it was an offence for someone who knew that he or she had HIV or AIDS to have sexual intercourse with another unless the person has been informed of the risk beforehand and had voluntarily agreed to accept that risk.6 However, the 2008 amendment extends liability to any person who ‘does not know’ he or she has HIV or AIDS but ‘has reason to believe he has, or has been exposed to the risk of contracting AIDS or HIV’.7 Amendment (2) A person who does not know that he has AIDS or HIV Infection, but who has reason to believe that he has, or has been exposed to a significant risk of contracting AIDS or HIV Infection shall not engage in any sexual activitiy with another person unless(a) before the sexual activity takes place he informs that other person of the risk of contracting AIDS or HIV Infection from him and that other person voluntarily agrees to accept that 2 National Aids Trust, Prosecutions For HIV Transmissions, Second Edition May 2010 3 Infectious Diseases Act (Chapter 137, 2003 Revised Edition), s4 4 Ministry of Health, Annex HIV Figures, 2011, Table 2 5 ibid, Table 1 6 Infectious Diseases Act (Chapter 137, 2003 Revised Edition), s 23(1) 7 Ibid, s 23(2)

(c) during the sexual activity, he takes reasonable precautions to ensure that he does not expose that other person to the risk of contracting AIDS or HIV Infection.

The amendment, in effect, broadens the range of liable parties and disregards ignorance of one’s HIV status as an excuse. However, it may be viewed by some as too harsh for two reasons.

Firstly, liability is potentially extended to include anyone who has ever had unprotected sexual intercourse. In reality, this is unfeasible as anyone who falls under that category could be a potential offender. Moreover, it is difficult to prove whether or not someone has had unprotected sex, and may further complicate matters. Secondly, and most importantly, it removes the courts’ previous considerations for the issues of knowledge and consent in such cases, which some may argue are vital factors. We will explore these issues in greater detail later.

In contrast, in England and Wales, there is no specific law regarding the transmission of HIV or AIDS. Instead, the law used to prosecute defendants is the offence of causing grievous bodily harm under the Offences Against the Person Act 1861.8 In Dica,9 the defendant was prosecuted for reckless transmission of HIV under section 20, which makes the infliction of grievous bodily harm an offence. It established that the consent to sexual intercourse was invalid because of the failure to disclose a venereal disease. The elements of knowledge and consent are thus key considerations the courts have to bear in mind when making the decision. This appears to be a fair and reasonable method in determining the defendant’s criminal liability.

KNOWLEDGE Prior to the amendment, knowledge used to be a key factor in determining the defendant’s charge.

Knowledge extends to both parties – whether the 8 The Offences against the Person Act 1861 (24 & 25 Vict c 100), s 18 & s 20 9 R v Dica [2004] 3 ALL ER 593 CA

defendant knew that he or she was HIV positive and whether the victim knew of the defendant’s status. However saying that someone has ‘reason to believe’ that he is HIV positive is not the same as someone having the knowledge that he is HIV positive. In the cases concerned, the victim usually gives consent to sexual intercourse (save rape).

If the defendant was genuinely unaware of his condition and there was no malice aforethought, it seems overly harsh for them to be prosecuted for the same maximum sentence as if the defendant did know about his or her status10.

Many point out that an individual is not being deceived when a sexual partner does not disclose his or her HIV-positive status, because a failure to disclose need not preclude an autonomous choice.11 With sexual education, it is not unreasonable to expect people to be aware of HIV and how it is transmitted. Academics also point out that it would be difficult for a woman who becomes pregnant to blame her partner for this on the grounds that he did not warn her of this possibility.12 Surely a woman that is competent to consent to sexual intercourse would also be aware of the risk of pregnancy. It is therefore not morally irresponsible of them to fail to provide a specific warning about this risk. However, consent to sexual contact should be invalidated if any information, which may cause a potential partner to refuse consent to sexual activity, is withheld.13 Pregnancy and HIV should be distinguished – the former is a risk that most heterosexual couples would associate with sexual intercourse, whereas the risk of contracting HIV varies with different sexual partners. They are therefore entirely different scenarios altogether.

CONSENT When the victim has knowledge, it becomes a question of consent. Consent is an element vital to the judgment – a ‘voluntary agreement to accept 10 Infectious Diseases Act (Chapter 137, 2003 Revised Edition), s 23(3) 11 R Bennett, “Chapter 13: Should We Criminalize HIV Transmission?” from Erin, Charles et al, The criminal justice system and health care, Oxford University Press 2007 (pg. 231) 12 R Bennett, “Chapter 13: Should We Criminalize HIV Transmission?” from Erin, Charles et al, The criminal justice system and health care, Oxford University Press 2007 (pg. 231) 13 C. A. Erin and J. Harris, ‘Is there an ethics of heterosexual AIDS?’, in L. Sherr (ed), AIDS and the Heterosexual Population (London: Harwood, 1993) 245.

the risk’14 surely constitutes as giving consent.

However, what exactly is the victim consenting to?

Does consenting to the act of sexual intercourse mean consenting to all the risks involved, i.e. getting infected with HIV? In the UK, it used to be so. Clarence15 held that mere consent to sex implies consent to all risks and sexually transmitted infections that came with the act. It was held that an offence could only be committed where there was a battery in the sense of a direct infliction of physical force to the body of the victim’.16 However, Dica17 changed this. Dica highlights the importance of being able to distinguish the different levels of consent – consent in cases where the victim has no knowledge should not be valid consent because the act consented to (sexual intercourse) is not the act that was committed (transmission of HIV).

In Konzani18, the courts made clear that only an informed consent, grounded in knowledge gained from direct or indirect disclosure of a partner’s HIV positive status, amounted to consent for these purposes. It would therefore appear that the present standard in England and Wales is informed consent. It is no longer adequate to use implied consent as a defence as per Clarence. This is a more reasonable and well-balanced approach to take, as it takes into account the victim’s actions and words, as compared to the Singapore’s current assumption of victim’s lack of fault.

Interestingly, the amendment raises the issue of informed consent as a defence.19 In other words, if the victim is informed of the defendant’s status and yet voluntarily agrees to accept the risk, the defendant has no criminal liability. The victims knew of the risks they were exposing themselves to and must bear responsibility for any consequences that follow, even if detrimental to them. One would question the circumstances under which would a sane person voluntarily accept the risk of being infected HIV. However, take the example of a married man who is HIV-positive due to a oneoff extramarital affair. His wife, who knows about the incident, may want a child with her husband 14 Infectious Diseases Act (Chapter 137, 2003 Revised Edition), s 23(1)(b) 15 R v Clarence (1889) 22 QB 23 16 M Weait ‘Criminal Law and the Sexual Transmission of HIV: R v Dica’, Modern Law Review 68/1 (2005), pg 122 17 R v Dica [2004] 3 ALL ER 593 CA 18 R v Konzani [2005] EWCA Crim 706 19 Infectious Diseases Act (Chapter 137, 2003 Revised Edition), s 23(2)(a)

and thus expose herself to the risk of HIV. Many argue that the state should exercise its paternalistic powers in protecting individuals against harmful acts and disallow this. Also, at first glance it seems to go against the landmark case Brown,20 where it was held that consent was not a valid defence to assault under sadomasochistic sexual acts. However, the two should be distinguished; Brown held that informed consent to the deliberate infliction of harm is invalid, where as in these cases, there is only consent to a risk. With the improvement of medical science, there are ways to avoid contracting HIV, such as by receiving post-exposure prophylaxis.

Academics point out that this is seen as no different to consenting to the risk of pregnancy.21 At the end of the day, the purpose of criminalising intention HIV transmission is not to infringe on one’s autonomy but to criminalise the wilful act of transmitting a sexual disease.

INTENTION Finally, the Singapore amendment also does not seem to give weight to the intention of the defendant where it should – after all the mens rea is a significant concept in the criminal law. In the UK, because transmission of HIV falls under the OAPA, the intention of the defendant determines if he or she is charged under section 18 (wounding with intent to do grievous bodily harm) or section 20 (inflicting bodily injury, with or without weapon), which carries a lighter sentence.

Likewise in Singapore, it should be distinguished whether the defendant had maliciously set out to infect the other person with HIV or it had been reckless, where transmission was a virtually certain outcome. Assessing the intention would help in arriving at a more appropriate sentencing.

The first time Singapore tried anyone under HIV-related laws was in 2008. In Chan Mun Chiong22, the HIV-positive man had performed oral sex on a teenage boy. The DPP said Chan did not inform the victim of the risk of contracting HIV infection from him and did not get the boy’s voluntary agreement to accept that risk before the 20 R v Brown (1994) 1 AC 212 21 R Bennett, “Chapter 13: Should We Criminalize HIV Transmission?” from Erin, Charles et al, The criminal justice system and health care, Oxford University Press 2007 (pg. 232)

22

Public Prosecutor v Chan Mun Chiong [2008] SGDC 189

sexual intercourse.23 The case drew much international attention, with epidemiologists saying that it seemed ‘ludicrous’ to be prosecuting someone for participating in a low-risk activity. The risk of transmission of HIV through oral sex is low to the point where it has not been able to be measured epidemiologically.24 The low levels of the risks involved aside, had the intention of the defendant been assessed, the case might have had a fairer outcome.

CONCLUSION The amendment, in doing away with dealing with central issues such as knowledge and consent, may end up with a legal system that may be more effective (in terms of conviction rates) but not necessarily more fair. Transmission of HIV should be criminalised, but perhaps the courts should seek to address the issues on a case-by-case basis, taking into account the intention and knowledge of the defendant and victim and the consent of the victim like before. To criminalise merely exposure to risks alone would be impractical to enforce and involve unwarranted intrusion into private sexual lives of adults.25 Criminalising something alone will not curb the spread of it. Instead, more should be done to educate people on HIV prevention in the form of sex education in schools and educational campaigns through mass media. Although the existence of added difficulties is acknowledged, a quicker legal system should not be at the expense of the fairness of a judicial decision.

23

E Chong, “Man jailed for not telling boy of risk in first HIV case”, The Straits Times (14 July 2008)

24

S Bennett, “Singapore Jails Man With HIV for Performing Oral Sex on Youth”. Bloomberg (15 July 2008)

25

M Weait ‘Criminal Law and the Sexual Transmission of HIV: R v Dica’, Modern Law Review 68/1 (2005)

MEDICAL NEGLIGENCE: evaluating the current legal standard of care

University College London

INTRODUCTION: CONSENT AND NEGLIGENCE The importance of patientsâ&#x20AC;&#x2122; consent is a key tenet of medical law, reflected by the legal duty of care upon doctors to provide patients with information regarding medical advice, diagnosis and treatment1.

This duty underscores a need for patients to be sufficiently notified of the relevant details of their medical condition and the availability of alternative treatments, thus affording patients the ability to give genuine consent to treatment proposed by their physicians.

1 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Bolitho v City and Hackney HA [1997] 4 All ER 771.

There is little dispute as to the value of consent2, which is sometimes regarded as an expression of individual autonomy, or as a justificatory shield for defendants against civil liability3. Prima facie, where a doctor obtains the informed consent of his patient, the onus is on the patient to accept repercussions of treatment that he consented to.

Yet, controversy shrouds the current legal approach determining the standard of care demanded of doctors when advising their patients. Indeed, the issue at hand is not as straightforward as it seems, 2 E. Jackson, Medical Law: Text, Cases and Materials (2nd, Oxford University Press, Oxford 2010).

3 http://www.friedmanbonebrake.com/articles/defenses-to-intentional-torts-consent/

because it is difficult to ascertain when a patient has been sufficiently informed, such that his consent is, in reality, an embodiment of his free will. Legal academics4 question whether the law is sufficient in expressing the autonomy of patients, in view of the prevailing legal test allegedly favouring the subjective judgment of medical practitioners at the expense of patients being adequately equipped to give true consent. In examining the merit of their arguments, this essay shall assess the validity of the current legal test defining breach of care in medical negligence and evaluate the practicability of alternative legal doctrines.

THE BOLAM TEST At the outset, it is important to distinguish between the standard of care in the context of medical professional negligence and other types of negligence. The standard of care associated with non-medical negligence is generally determined by the common law definition of an objective, reasonable man5. In contrast, the standard of care in relation to medical negligence is governed by the Bolam6 exception, which holds that a doctor must act in accordance with accepted standards of practice determined by a ‘responsible body of medical men skilled in that particular art’. Thus, it is observed that the rules on medical negligence are largely shaped by prevailing medical opinion on what constitutes ‘reasonable conduct’ on the doctor’s part. This was recently affirmed in the case of Tong Seok May Joanne v Yau Hok Man Gordon7.

EVALUATING BOLAM Detractors mainly criticise the Bolam test on the basis that it compromises the patient’s right to self-determination, as the standard espoused

by Bolam is pegged to the expectations of the medical fraternity. Consequently, even if a doctor fails to explain and advise a patient of the risks of his illness and corresponding treatments so as to empower him to make a fully informed and autonomous choice with respect to his medical condition, the doctor escapes legal liability as long 4 Philip M.D. Grundy and Annette P. Gumbs, ‘Bolam, Sidaway and the unrecognised doctrine of “informed consent”: a fresh approach’ [1997] J.P.I.L. 211, 219 5 Nettleship v Weston [1971] 2 QB 691.

6 [1957] 2 All E.R. 118.

7 [2012] SGHC 252.

as his actions cohere with standards propounded by practitioners in the medical field. Harry Lesser8 argues that the Bolam test may be justified in recognising that doctors possess specialised professional expertise which allows them to properly evaluate the pros and cons of available methods of treatment and decide which of those methods can give rise to the highest success rate of treatment and recovery. However, he also points out that this is not necessarily conclusive and the issue of whether a particular method of treatment should be undertaken cannot be solely determined by considerations of clinical effectiveness. A patient’s autonomy ought to be treated as a critical factor of assessment, which entails proper respect of the patient’s right to choose whether to undertake the advised treatment in light of one’s own values and interests. Thus, subjective preferences of a patient should not and cannot be subjugated to the dictation of his physician regardless of whether the defendant doctor acted within reasonable bounds of conduct prescribed by expert medical opinion.

For instance, most, if not all, medical treatments will pose the risk of side effects that may diminish the patient’s quality of life to some extent, such as the loss of fertility caused by cancer treatment9.

Alternatively, certain individuals may possess strong religious convictions, which play a critical role in influencing the patient’s assessment of the advantages and disadvantages in relation to a particular treatment.

In such circumstances, the patient must be allowed the freedom to ultimately decide whether an extension of life in accepting treatment is more desirable than its corresponding implications.

Given the inadequacy of the legal standard set forth in Bolam in addressing such personal conundrums, it is advisable for the law to modify its stance so as to protect patients’ rights to autonomous consent.

8 ‘The Patient’s Right to Information’ in Margaret Brazier and Mary Lobjoit (eds), Protecting the Vulnerable Autonomy and Consent in Health Care (Routledge: London, 1991) 150,160.

9 G. Quinn, American Society of Clinical Oncologists, 2009 Annual Meeting, Abstract CRA 950; quoted in L Hamilton, ‘Can patients who are rendered infertile by cancer treatment sue their doctors?’ [2011] M.L.J.I 25, 32

However, this essay submits that this thread of argumentation runs the risk of conflating issues of autonomy and liberty, which ought to be carefully distinguished. The gist of the aforementioned concern alludes to the tainted quality of consent given by a patient who is not properly forewarned and informed of details necessary for him to make a genuine decision pertaining to his physical health, thus allowing negligent physicians to evade legal culpability all too conveniently on the pretext of his apparent ‘consent’10. Indeed, this essay concedes that it would be unwise to absolve physicians of their legal and moral responsibilities by reason of superficial consent that is not representative of a patient’s autonomy and will.

Yet, we must acknowledge that this concept of autonomy in ‘informed consent’ is predicated on the notion that the patient possesses the capacity to exercise free choice in the first place.

Re MB11 refines the principle of autonomy, which detractors are so protective of, by clarifying that an individual may lack requisite capacity if he or she suffers an ‘impairment of mental functioning’, making him or her incapable of determining whether consent should be given. This impairment may be triggered by temporary factors such as fear or panic, which cause the patient to become irrational and prevent him or her from exercising the ability to consent to medical treatment. Given that a patient may be easily affected by existing circumstances which impinge on one’s ability to exercise his or her autonomous rights, it is submitted that the Bolam test remains a reasonable standard to uphold because it allows us to discern when and how a doctor ought to act, in situations where the patient’s capacity to make independent choices is affected. Issues concerning the practice of medicine and the relationship between patient and doctor will not always be set out in black and white and the Bolam test is extremely useful in allowing us to navigate and maneuver its inevitable grey areas. Thus, the current approach keeps the law responsive to the best interests of patients while ensuring the efficacy and coherence of health solutions purveyed.

10 For example, a patient who has a slight eye infection may agree to his doctor performing a surgical operation on him, whilst unaware that this infection can easily be cured by greater periods of rest and antibiotics.

Although he willingly gives his ‘consent’, that consent is vitiated by his lack of knowledge and information.

11 MB (Caesarean Section), Re [1997] 2 F.L.R. 426

On a more macro-scale, another challenge Bolam faces is that it may neglect the core justification underlying the duty of disclosure. Ideally, such obligations should afford patients a greater understanding of the relative advantages and disadvantages of treatment, thus empowering them to make a final decision of their own volition.

Yet, the fact that their duty is pegged to standards subjectively accepted by those within the medical fraternity itself implies a paternalistic approach that manifests undue deference to expert medical opinion12. This is because the Bolam test places weight on the general consensus amongst medical practitioners, rather than the views of patients undergoing treatment. This may engender a potentially disturbing trend of doctors and other medical staff becoming too pre-occupied with complying with existing norms prevalent in the medical field, where doctors may be easily contented by comparing themselves to their fellow counterparts, rather than exploring various means to better serve patients’ specific needs and demands. This not only defeats the primary objective of physicians providing adequate information to their patients, but may also cause a loss of incentive to take further steps to improve the quality of medical services provided, promoting stasis in the healthcare industry as a whole.

However, while the legal benchmark of care to which doctors must conform may not necessarily be most effective in ensuring that maximum standards of healthcare are met, we should be careful not place an overt emphasis on the law, such that other mechanisms which similarly affect and regulate the quality of medical services become neglected. Indeed, doctors are also subject to other extrinsic non-legal pressures that similarly motivate them to exercise reasonable care towards their patients, with respect to diagnosis, treatment and information disclosure. For example, doctors are likely to be inspired to cater their treatments to the individual priorities of their patients, beyond codes of conduct that members of the medical community expect of themselves, in a bid to remain competitive amongst many other providers of medical expertise and services, as well as to maintain a favourable reputation within 12 E. Jackson, Medical Law: Text, Cases and Materials (2nd, Oxford University Press, Oxford 2010) 169

the industry itself13.

Even so, those in strong support of specifically enforcing appropriate guidelines for medical practitioners via the law stubbornly discount the eminence of such social factors, thus casting the spotlight on alternative approaches to the Bolam test.

LEGAL REFORM: PATIENT-CENTRIC ALTERNATIVES Amongst the potential candidates as substitutes for the Bolam standard, the ‘prudent patient’ test14 seems to be particularly attractive, having been adopted in several other jurisdictions, such as the United States of America, Canada, Australia and New Zealand. Because this approach requires a doctor to inform his patient of material risks, that is, risks that a reasonable person is ‘likely to attach significance to when deciding whether or not to forego the proposed therapy’, it focuses more directly on the patient. This influences the quality of consent given15, in the sense that the patient is empowered to agree to treatment in an open and transparent context, preventing him from giving mere blind consent. Therefore, the ‘prudent patient’ test properly addresses the basis of the imposition of a duty to inform. It is also suggested that the alternative test will encourage doctors to find out more about their patient’s interests, thereby improving standards of medical care. Nonetheless, this test is susceptible to attack.

Firstly, it is unlikely that the law will be able to provide much guidance on the risks that a reasonable patient regards as material.

Thus, doctors will still be inclined to refer to the expectations of their counterparts when identifying these ‘material risks’. As a result of this, the test is almost approximate to that of Bolam, failing to avoid issues it sought to rectify in the first place16.

13 Federal Trade Commission and Department of Justice, U.S., ‘Improving Health Care: A Dose of Competition’ [2004].

14 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Raised by Lord Scarman, Sidaway v. Board of Governors of the Bethlem Royal Hospital Governors [1985] AC 871.

15 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All E.R. 643; Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB).

16 E. Jackson, Medical Law: Text, Cases and Materials (2nd, Oxford University Press, Oxford 2010) 190.

Secondly, complications often arise in the case of patient-centered legal approaches because they rely on personal considerations17 of individual patients, which vary dramatically, making it extremely difficult to balance such relevant factors against a simple, technical assessment of whether the treatment should be undertaken or not. There is no clear answer to where the line should be drawn, when deciding the extent of information a doctor is obliged to disclose.

Lastly, deviations from the seemingly defendantslanted18 test in Bolam19 may hinder the effectiveness and expediency of medical prognosis and treatment. It is submitted that trust is essential for medical treatment to be carried out successfully, where patients are more likely to recover, and at a higher rate, if they are willing to rely on their doctor’s advice and adhere to his or her instructions. Prioritising subjective needs of patients over doctors’ judgment and medical expertise may reflect a general sense of distrust in medical practitioners’ ability to reach a satisfactorily weighed decision, thus prolonging the length of time required for recovery and disrupting the integrity of the relationship between doctor and patient.

While critics have acknowledged the defects of alternative patient-centric approaches, they insist that these flaws pale in comparison to the weaknesses of the current legal test adopted in common law, which implies a potentially crippling effect on the patient’s right to autonomy and free choice in making medical decisions for themselves.

A contravention of such rights will necessarily cause medical treatment to rest on shaky grounds and a patient-centric legal test should be adopted in light of such circumstances.

However, such an argument represents a slipperyslope exaggeration of the possible consequences of the current legal standard in Singapore.

As emphasized in Tong Seok May20, a proper application of the Bolam test qualifies apparent 17 Alexander Morgan Capron, ‘Informed Consent in Catastrophic Disease Research and Treatment’ [1974] 123 U.P.L.R 340, 416-417.

18 Christopher Stone, ‘From Bolam to Bolitho: Unravelling medical protectionism’ [2011]; Ruth R Faden, Tom L Beauchamp, with Nancy MP King, A History and Theory of Informed Consent (Oxford University Press, Oxford 1986) 306-307.

19 [1957] 1 WLR 582.

20 [2012] SGHC 252.

judicial immunity of defendants from inquiry into medical procedures. This is because it is supplemented by the Bolitho requirement, which establishes that professional medical opinion must be grounded on a logical basis, which includes a cost-benefit assessment. Hence, decisions arrived at upon comparison of the risks and merits of medical treatment must be rationally sound and defensible on such terms21; where the risk is particularly high, or the consequences of treatment are especially grave, there remains an incumbent duty on the physician to inform his patient accordingly, regardless of expert medical opinion22.

Furthermore, significant policy considerations weigh heavily in favour of the existing test.

Disputes concerning allegations of professional medical negligence inadvertently place reliance on evidence requiring ‘empirical observation’ and long-standing ‘medical research’23. The judiciary’s lack of specialised knowledge and medical expertise renders them ill equipped to assess the real gravity of the issues at play and intervene in respect of such matters. Medical deference may therefore be important in balancing such considerations.

Lastly, excessive judicial interference may ‘raise the spectre of defensive medicine’24, posing the danger of higher medical costs and wastage of precious medical resources. This is a cause for concern, particularly in light of Singapore’s efforts to enhance its reputation as a leading medical hub, so as to provide world-class healthcare services to local and international clients alike. Given that the law plays a pivotal role in furthering such objectives25, current standards defining professional medical negligence ought to strike an 21 Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 415.

Catherine Tay Swee Kian, ‘Professional negligence and medical professional privilege: Impact of D v Kong Sim Guan’, Tolley’s Professional Negligence.

22 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All E.R. 643.

23 Court of Appeal, Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 415; Catherine Tay Swee Kian, ‘Professional negligence and medical professional privilege: Impact of D v Kong Sim Guan’, Tolley’s Professional Negligence.

24 Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 415 at 454.

25 Kai Hong Phua and N. S. Pocock (2012), ‘Transforming the ASEAN Economic Community (AEC) into A Global Services Hub: Enhancing the Competitiveness of the Health Services Sectors in Singapore’ in Tullao, T. S. and H. H. Lim (eds.), Developing ASEAN Economic Community (AEC) into A Global Services Hub, ERIA Research Project Report 2011-1, Jakarta: ERIA, 111-146.

appropriate balance between consumer protection and respect for medical professionalism, arguing against complete abandonment of the test in Bolam.

CONCLUSION Consent is essential in the process of medical treatment because it is representative of the patient’s autonomous right to decide what is best for them, provided that patients are actually capable of making such decisions26. The law expresses this key principle by imposing an obligation on doctors to inform patients adequately, so as to enable patients to make wellbalanced decisions and eventually, provide real and informed consent to proposed treatments.

Yet, there are complications to the enforcement of this duty, with courts struggling to set out, in precise terms, the standards that doctors ought to comply with when advising and treating their patients. It is submitted that the Bolam test tries its best to resolve definitional ambivalence, where its appeal lies in its simplicity by effectively defining negligence according to the general consensus of medical practitioners. Moreover, allegations by opponents that the adopted standard of care may actually erode autonomous consent of patients as well as curtail the quality of medical services offered may not be particularly compelling, due to reasons explained above. Furthermore, it is important to highlight that the current test is not merely confined to the Bolam test. It supplemented by additional qualifications found in Bolitho and Sidaway, which hint at the court’s efforts to make the law amenable to shifting paradigms with respect to Singapore’s medical landscape and its moral implications. Therefore, in general, the current standard of care in medical negligence appears to be a salient legal approach, especially when considered in light of wider social and public policy factors. That said, authorities should still continue to be mindful of its shortcomings and be prepared to address adverse implications through a variety of means and mechanisms, whether it be strictly in terms of the law or beyond those parameters.

26 Does not cover exceptions like infants, mentally handicapped, etc. Refer to the Mental Capacity Act (Chapter 177A).

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MARITAL RAPE IMMUNITY: an anachronistic defence?

The concept of marital rape immunity in Singapore is a remnant of colonial legislation, and has its roots in the law of the United Kingdom. This essay argues that it is high time for the concept to be abolished in totality.

by Tan Tian Hui University of Bristol

“… The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

M. Hale, The history of the pleas of the Crown, 1736 The concept of marital rape immunity in Singapore is a remnant of colonial legislation, and has its roots in the law of the United Kingdom. While the UK has since abolished this obsolete concept of marital rape immunity1, Singapore still retains this concept. This paper seeks to establish that the concept of marital rape immunity is a legal fiction.

This requires a discussion of the brief history of the law on marital rape immunity, and a comparison of the law in Singapore and UK. This is followed by an examination of supporting and opposing arguments against its preservation. Finally, it is argued that the concept of marital rape immunity should be abolished in totality.

MARITAL RAPE IMMUNITY – A BRIEF HISTORY In Singapore, the concept of marital rape immunity is stated in s 375(5) of the Penal Code2, which provides husbands with a defence when they rape their wives under s 375(1)3, unless their wives are covered by the exemptions under s 375(4). This concept finds its origins in British law, and can be traced back to the medieval times.

Historically, the law of rape was concerned with the protection of a woman’s virginity4. Thus, the courts acquitted defendants of rape where it could be proven that the woman had previous or subsequent sexual intercourse with the same man5.

Nineteenth century developments steered the defence in an opposite direction. In the 1888 case 1 R v R, 1992 1 AC 599 2 s 375(5) of the Penal Code states, “Notwithstanding subsection (4), no man shall be guilty of an offence under subsection (1)(b) for an act of penetration against his wife with her consent.”

3 s 375(1)(a) of the Penal Code states, “Any man who penetrates the vagina of a woman with his penis without her consent... shall be guilty of an offence.”

4 J Temkin, Rape and the Legal Process (2002) 2nd edition, Oxford: OUP 5 Ibid, p. 75

of Clarence6, the defendant failed to disclose his contraction of a venereal disease to his wife, with whom he subsequently had sexual intercourse.

The court queried the existence of a marital rape exemption in dicta. Smith J suggested that consent to sexual intercourse, presumably given to the man upon marriage, could be revoked by the wife7. Hawkins J also considered that “this marital privilege does not justify a husband in endangering his wife’s health and causing her grievous bodily harm”8.

The English judiciary officially abolished the concept of marital rape immunity in the 1991 case, R v R9. The House of Lords in R v R had to define the ambit of ‘unlawful sexual intercourse’, as stated in s 1 of the Sexual Offences Act 197610. In its judgment, changes in social development and its consequent influence on the status of women were emphasised. Recognising the improvements in the state of gender equality, Lord Keith stated that marriage is now “regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband”11. This entailed a reading of the rape law which stretched the scope of ‘unlawful sexual intercourse’ to cover sexual intercourse within marriage. While the judges were criticised for breaching the rule nulla poena sine lege – no punishment without crime – it must be noted that the judges were not creating a new offence. In the first place, the concept of marital rape immunity was a ‘common law fiction’12, shaped by a prejudicial historic reading of the law. Why, then, have we continued to preserve this medieval concept?

NOT THE LAW’S BUSINESS To begin with, proponents of the status quo argue that it is inappropriate for the criminal law to intervene in the marital relationship, because this will foster discord and disharmony in family units13, frowned upon in conservative 6 (1888) 22 QBD 23 7 Ibid, at [33] 8 Ibid.

9 1992 1 AC 599 10 Replaced by Sexual Offences Act 2003 11 Ibid, at [616] 12 1991 2 All ER 257, at [266] 13 Associate Professor Ho Peng Kee, Excerpt from Singapore Parliamentary Debates, Vol. 83, Col 2175 (22 October 2007)

Asian societies like Singapore. It is difficult to obtain evidence and to discharge the burden of proof where private matters are concerned. In the context of marital rape, it has been argued that the current law protects husbands or potential offenders, for they are not open to potential abuse by a vindictive wife who may have actually agreed to sex, perhaps reluctantly, but cries foul later14.

Criminal law should therefore avoid playing a role in perpetrating discord among couples, who are expected to sort out their private matters on their own.

This paper however objects to the argument that criminal law should not intervene in the realm of private matters. Taking an instrumental conception of criminal law, Walker considers that the role of the criminal law is to further the smooth functioning of society and the preservation of order15. JS Mill’s ‘principle of liberty’16 is of assistance in delineating the extent to which criminal law should intervene to maintain public order. Mill argued that according to the principle, it is appropriate for criminal law to intervene in order to prevent ‘harm to others’, but not to control harmless behaviour or to prevent the person harming herself17. The offence of marital rape clearly involves both psychological and physical harm caused to the victim. As the function of the criminal law is to protect citizens from harm from others, it is argued that it should not shirk from its responsibility depending on whether the harm occurs in a private or public context. Victims of marital rape suffer from psychological harm akin to that faced by rape victims, and therefore ought to be protected equally.

Additionally, some may argue that allowing the criminal law to intrude in family life would represent a stark shift from the current position that favours non-intervention. However, the reality is that the criminal law is already involved in family life18. A husband can be charged with other criminal offences if he abuses his wife, such 14 Ibid.

15 N Walker, Punishment, Danger and Stigma (1980) Oxford: Blackwell 16 JS Mill, On Liberty (1859) 2nd edition, London: JW Parker & Son 17 N Lacey, C Wells and O Quick, Reconstructing Criminal Law (2010) 4th edition, Cambridge: CUP 18 Tan Cheng Han “Marital Rape – Removing the husband’s legal immunity”, 31 Malaya L Rev 112 1989, at p. 123

as assault, causing hurt or grievous hurt. Clearly, the law recognises the importance of criminal law in protecting victims of domestic violence. It is unjustified that victims of marital rape are left out of this sphere of protection.

A JURISPRUDENTIAL DEBATE A discussion of whether criminal law should intervene in private relations would be remiss without referring to the jurisprudential debate concerning public and private morality. This paper draws on Lord Devlin’s response to the Wolfenden Report of 1957, which recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence. The Report was characterised by an increasing awareness of individual autonomy, and recognised that “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”19.

Against this, Lord Devlin famously argued in his Maccabean Lecture of 1959 that “there is such a thing as public morality … What makes a society of any sort is community of ideas… ideas about the way its members should behave and govern their lives; these latter ideas are its morals”20.

Lord Devlin’s argument about the existence of a public morality is relevant in the present debate concerning whether marital rape immunity should be preserved. Even though marital rape is a private matter, it makes a statement about morality and gender equality. By condoning marital rape between private couples, the law promotes the idea of gender inequality and female suppression in society. Such a view silences the victims of marital rape, and perpetrates the idea that women do not have the right to refuse sex with their husband21 – a common law fiction and a gender construction at best. Abolishing the concept of marital rape immunity would therefore serve a symbolic purpose by restoring public morality and promoting gender equality.

19 Report of the Committee on Homosexual Offences and Prostitution ‘Wolfenden Report’ (1957) Cmd. 247, Para. 13 20 P Devlin, The Enforcement of Morals (1965) Oxford: OUP 21 D. E. H. Russell, Rape in Marriage (1982) Bloomington, Indiana: Indiana University Press

ALTERNATIVE OFFENCES AND THE DEMISE OF FAIR LABELLING Supporters of the preservation of marital rape immunity as a defence argue that there are alternative offences to marital rape, such as assault. However, this paper contends that these offences fail to reflect the severity of the crime, and consequently do not impose an appropriately harsh punishment on the offenders.

The offence of rape should not be replaced with other labels, such as assault. The use of the term “assault” fails to reflect the fact that rape violates individual autonomy, and goes beyond unwanted physical touching. Rape constitutes a grievous assault on the interests and integrity of the victim, and the victim is denied control over an important area of his or her life22. The offence of rape infringes human autonomy; in particular, it represents “the demonstration of power over women”23. The term ‘assault’ is an inferior means of conveying the various aspects of the crime, for it symbolizes a milder form of interference, conceived by the layman as offences involving bodily interference rather than an infringement of sexual autonomy.

Furthermore, classifying marital rape under the lesser offence of assault also has practical implications on the punishment of the defendant.

In Singapore, an offender guilty of rape faces imprisonment for a term that may extend to 20 years, and is also liable to a fine or caning24. In comparison, offenders would be imprisoned for a term that may extend to three months, or with a fine which may extend to $1,500, or with both, for the offence of assault25. Punitive measures are therefore differentiated on the perception that rape is a crime that is viewed more negatively than assault because of its severe consequences.

Victims of marital rape ought to have a right to access rape laws, rather than having to turn to alternative offences, which do not reflect the traumatic experience of rape. Rape is not assault, nor a mere violation of physical bodily integrity 22 D Warburton, “The rape of a label: why it would be wrong to follow Canada in having a single offence of unlawful sexual assault”, J Crim L. 2004, 68(6), 533-543 at p. 542 23 K Bumiller, “Rape as a Legal Symbol: An essay on sexual violence and racism”, 42 U. Miami. L. Rev. 75, 81 (1987) 24 s 375 Penal Code 25 s 352 Penal Code

– rape constitutes a denigration of a woman’s sexuality and autonomy.

IS THERE AN EXISTING SAFETY NET? Arguments against abolishing marital rape immunity include the contention that even if the defence is abolished, there will be few cases that do not already fall within the exceptions in s 375(4) of the Penal Code. Currently, women already have protection if they have taken active steps to seek a protection order or injunction to restrain their husband from having sexual intercourse with them, or if they are living apart from their partners. Consequently, it may be argued that there are avenues provided to women to circumvent the archaic defence. The law therefore does not owe a duty to protect women who do not choose to exit the abusive relationship, and are therefore the authors of their own misfortune.

However, this argument fails to recognize that there remains a proportion of victims, who do not pursue divorce or separation, or apply for injunction or protection orders against their husband, that falls into the gaps that the criminal law fails to address. As Sylvia Lim argued, the law therefore penalises the most vulnerable of wives: those who have no choice but to continue in a marriage, for whatever reason26. A multitude of reasons exists – the ‘family violence approach’ to domestic violence identifies a range of factors that are associated with victims who persist in abusive and exploitative relationships, such as low socio-economic status, social and structural stress, social isolation, and personality problems and psychopathology27. The current law protects victims who have the freedom of choice to leave, but not the most vulnerable group of women who are unable to leave the relationship often because they are hindered from exercising their freedom of choice due to the factors mentioned, and not because they voluntarily choose to do so. It is therefore necessary for legislation to plug the gap where victims are unable to seek recourse.

Additionally, as West argued in the context of 26 Excerpt from Singapore Parliamentary Debates, Vol. 83, Col 2175 (22 October 2007) 27 R Gelles, Family Violence (1987) London: Sage Publications

restrictions on the defence in various US states (akin to the current approach in Singapore), these restrictions further entrench the core rationale of the exemption – the protection of the privacy and integrity of the true marital relationship against legal intervention justifies the burden that forced sex imposes on a married woman’s safety and privacy28. This paper therefore argues that the law should not differentiate between victims whom it chooses to protect for it has practical implications on the protection of the victim, and emphasises the archaic concept that rape is justified by marriage, for the wife then becomes the property of the husband.

CONCLUSION In conclusion, this paper echoes calls for the defence of marital rape immunity to be abolished.

The current ‘calibrated approach’29 that has been adopted fails to tackle husband-rapists in the same way that it tackles non-spousal rapists, and does not afford the same protection to rape victims, be they wives or not. Furthermore, a halfway approach conveys an equally half-hearted attempt to protect sexual autonomy. Rape is rape; it infringes the autonomy of victims and causes harm to them, regardless of their relationship with the rapist. The current law fails to treat marital rape seriously – a crime not to be condoned in the 21st century where marriage is treated as a partnership of equals, not as between a master and his chattel.

28 R West, “Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment”, 42 Fla. L. Rev. 45 (1990) 29 Ministry of Home Affairs, Summary and Response to Public Feedback on the Penal Code (Amendment) Bill (2007) Available at: www. mha.gov.sg/get_news_file.aspx?file_id=42a...pdf

LEGITIMATE AUTHORITY & CONSENT This article explores the relationship between legitimate authority and consent through a comparison of Joseph Razâ&#x20AC;&#x2122;s Service Conception of Authority and the Social Contract Tradition.

by Joshua Oeij

London School of Economics and Political Science Illustration by Aaron Thng

INTRODUCTION This essay will explore Raz’s Service Conception of Authority (SCA) and submit that Raz’s theory is problematic because it does not fully correspond with our understanding of legitimate authority.

First, the SCA will be explored. Second, this essay will compare Raz’s SCA with the Social Contract Traditions (SCTs) of Hobbes, Kant and Rawls and submit that Raz’s theory is found wanting in comparison to the SCT as it does not fully reflect our conception of authority. The final section explores Razian authority with regard to Singapore and suggests how the SCA might be remedied to make authority more legitimate.

At the outset, it is important to understand Raz’s starting premise and goal. Raz was concerned with resolving the tension between authority and autonomy and addressing how law’s claim to authority could ever be justified. Instead of justifying authority by consent, Raz departs from the SCT of Hobbes, Kant and Rawls by grounding legitimacy in the benefits of having authority serve citizens by aiding them to better conforming to reason. In support of this, it could be argued that consent in the SCT is hypothetical/counterfactual and hence unrealistic. As Dworkin points out, in hypothetical contracts, parties do not actually exchange promises and thus cannot be held to have undertaken any obligations in reality1.

THE SERVICE CONCEPTION OF AUTHORITY In order to justify authority, Raz relies on three doctrines. Although, strictly speaking, the SCA consists of the first two, it is closely interlinked with the third. First, the Normal Justification Thesis (NJT) addresses the question of when it is that someone can claim to be a legitimate authority2.

The NJT states that the normal and primary way to establish that a person should be acknowledged to have authority over another involves showing that the subject is likely to better comply with 1 J.E Penner and E. Melissaris, McCoubrey & White’s Textbook on Jurisprudence (5th edn, UOP 2012) 163 2 Raz, J, ‘Authority and Justification’, Philosophy and Public Affairs, Vol. 14, No. 1. (Winter, 1985), 21

reasons if he intends to accept the directives than not3. Second, the Dependence Thesis (DT) states that authoritative directives should be based on reasons which apply individually to the subjects4.

Third, the Preemption Thesis (PT) addresses the nature of an authoritative directive. Raz posits that the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when deciding what to do, but should replace some of them. Taken together, Raz believes that authority is legitimate as long as the law is able to serve the governed by helping them conform better to reasons. Thus citizens’ surrender of judgment and acceptance of authority is the most rational course of action5.

Having reviewed the SCA, we will now go on to analyse whether Raz’s conception successfully captures the conditions for legitimate political authority. First we shall consider the proceduralist objection to the NJT in the context of a modern democracy. It is immediately clear that in today’s political communities, respecting our ‘status as political equals’6 often results in focusing on making decisions together rather than simply getting them right7. The NJT focuses on the ‘merits of the outputs not inputs’8. In other words, the NJT is blind to the possibility that an authority’s legitimacy may depend as much on how it makes decisions as on what those decisions are9. Thus, although the combination of the NJT and DT might result in an effective political authority, it does not establish legitimacy.

Second, it will be argued that the SCA does not sufficiently establish a right to rule. As Wolff argues, authority is the right to command and correlatively, the right to be obeyed10. Darwall succinctly notes, that if B does better in complying 3 Raz, J, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) Minnesota Law Review 90, 104 4 ibid 2 at 14.

5 ibid 6 Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 18 7 S. Hershovitz, “Legitimacy, Democracy, and Razian Authority”, 216-219 8 Shapiro, “Authority”, 434 9 S. Hershovitz, The Role of Authority, Philosophers’ Imprint Vol. 11, No. 7, 3 10 R. P. Wolff, In Defence of Anarchism (Harper and Row, New York, 1970), 4

with independently existing reasons by treating A’s reasons as pre-emptive, it does not necessarily follow that A has authority with respect to B. The NJT establishes that it would be rational for B to follow A’s directive but provides no compelling justification or argument that B has an obligation to obey A. Using Raz’s coordination example, it would be foolish for any subject not to drive on the right side of the road, but this does not entail that such a command is actually binding. Wolff would argue that while the benefit of following such a command constitutes a compelling factor in the subject’s reasoning process, it is akin only to good advice and the autonomous citizen makes the ultimate decision. Thus, it is submitted that even if citizens obey the directives of an authority which satisfies the conditions of the SCA and PT, such an authority can only be described as a de facto authority at best. It appears counterintuitive to consider an authority legitimate without a convincing argument establishing an obligation for us to obey.

SOCIAL CONTRACT THEORIES As stated in the introduction, Raz and Dworkin reject consent as a basis for grounding legitimacy, however, we must still consider the relationship between consent and legitimate authority.

Although Hobbes’, Kant’s and Rawls’ theories culminate in the establishment of SCTs based on consent, it is important to briefly explain and distinguish their theories.

Hobbes presents a fundamentally individualistic and pessimistic perspective of human nature.

Men in such a state are rational but wholly selfinterested, motivated exclusively by personal gain regardless of any reciprocal negative effect on the freedom or livelihood of others; a “war of all against all”11. This ruthless self-interest and lack of any legal rights poses a significant threat to every individual and “the life of man [is] solitary, poor, nasty, brutish and short”12. To exit this counterfactual state of nature, men enter into mutual agreements on the basis of reciprocity as a matter of conceptual necessity. Citizens agree 11 12

Thomas Hobbes, Leviathan (1651) ibid

with each other to authorise the sovereign to issue commands to which they will be bound. For Hobbes, although modern men never explicitly consent (their ancestors might have) to this contract, they are held to have done so implicitly by living as members of a political community and accepting its terms by omission13. In contrast with Hobbes, Kant’s social contract does not depend on an actual exchange of promises between citizens.

Instead, because we are under a duty to enter the rightful condition, we should accept to be governed by a juridical State. As rational citizens, we consent to a ‘public right’ or set of public norms and procedures which bind everyone equally, creating spheres of freedom and assurance. We rationally consent to this set of omnilaterally binding obligations in order to govern our external relations without violating others’ autonomy.

Rawls’ account of legitimacy of authority based on consent is presented as a way of understanding how is it possible that there exists a stable and just democratic society of free and equal citizens.14 Rawls’ political liberalism, similar to Hobbes and Kant’s theory of authority, approaches the tension between authority and autonomy from a social contract perspective. The tension is resolved because the individual is deemed to have consented to the surrender of judgment to the authority without surrendering one’s autonomy. In order for Rawls to construct his theory of political liberalism, he begins with the premise that in the context of modern, constitutional and democratic societies, reasonable and rational citizens will regard themselves and others as free and equal.15 From the discussion so far, we can identify a common factor linking the theories of Hobbes, Kant, Rawls and Raz. The main attribute which intertwines all theories at a basic level is the recognition of the rational nature of individuals.

Thus, it would appear that for Hobbes, Kant and Rawls consent is a consequence/product of rationality or reason. Prima facie, if citizens under different versions of SCT are essentially driven by reason, the fact that the NJT does not explicitly endorse consent should not be fatal (as it might 13 14 15

ibid 1.

S. Freeman, Rawls (1st edn, Routledge 2007) 326 ibid at 331.

be implied) since it is ultimately based on helping citizens conform to reason. Unfortunately, Raz explicitly rejects consent in his theory, arguing that it is not consistent with autonomy, which requires one to act according to reason.16 However, this proves to be an insurmountable obstacle in using the SCA to justify an authority as legitimate since reasons alone cannot establish that a person has undertaken or accepted an obligation to obey. It could be argued Raz is talking past his contemporaries as Coleman observes that Raz sees authority as ‘a relationship between reasons and persons’ whereas the ‘ordinary notion of authority’ is seen as ‘a relationship primarily between or among persons’17. Thus, Raz might argue in defence that his theory never imposes a general obligation to follow the law. According to the Independence Condition (IC), the law ceases to be authoritative if it does not help the subject to better conform to reason or does not on the whole reflect reasons which apply to the subject.

However, releasing a subject from his obligation to obey defeats the purpose of having legitimate authority altogether. In fact, the IC undermines Raz’s own PT. SINGAPORE: A RAZIAN CONCEPT OF AUTHORITY? This segment of the essay aims to engage in a short discussion of the SCA with respect to Singapore and submits that the SCA alone fails to create/ ground an obligation for a citizen to obey. Much of the People’s Action Party (PAP) government’s success through the years has been built on both its economic foresight and success. For example, the PAP government has had a phenomenal economic track record since it came to power, transforming Singapore from a sleepy fishing village to a thriving metropolis and raising Singapore’s GDP per capita from 1,310 SGD in 1960 to 65,048 SGD in 201218. In fact, Singapore now ranks as the country with highest GDP per capita in the world 16 Raz, J, (2006) ‘The Problem of Authority: Revisiting the Service Conception’ Minnesota Law Review 90, 1003-1044 17 Jules L. Coleman, ‘Beyond Exclusive Legal Positivism’, (unpublished manuscript, Yale University) 18 18 ‘National Accounts’ http://www.singstat.gov.sg/statistics/ browse_by_theme/national_accounts.html accessed 18 June 2013

and is expected to be at the top until 205019. Much of this incredible feat can be credited to the PAP government’s sound economic policies through the years. Hence, a strict Razian conception seems to provide an accurate descriptive account of authority up until the recent elections – in general, the PAP government has employed a paternalistic and technocratic approach in policy-making. The recent Media Development Authority (MDA) licensing regulations provides one such example.

Under the recently promulgated framework, news sites will be individually licensed if they report an average of at least one article per week on Singapore’s news and current affairs over a period of two months, and are visited by at least 50,000 unique IP addresses from Singapore each month over a period of two months20. Furthermore, the licenses are reviewed annually, include a performance bond of S$50,000 and require that objectionable content be removed within 24 hours when directed by the MDA21. The government’s reasons for the new regulation include the need to maintain stability in a small, multi-racial country and that media must be held accountable for what they publish22. This incident provides a lucid illustration of the proceduralist objection discussed earlier. While the PAP government may have got the outcome right, the sudden enactment of such regulations without any prior consultation with affected parties (i.e. netizens) diminishes the legitimacy of the decision and hence authority in the eyes of citizens. However, on the other hand, other contentious decisions made without extensive prior consultation have also brought benefits to Singapore. One such example is the construction of the two integrated resorts/casinos which have increased Singapore’s GDP. Therefore, the two examples cited above highlight that despite its successes, such a governance structure results in an inevitable trade-off between citizen debate/ input on one hand and speed/efficiency in policy19 Surekha Yadav, ‘Singapore Tops the GDP Charts’ Forbes <http://www.forbes.com/sites/surekhaayadav/2012/08/14/singapore-topsthe-gdp-charts/> accessed 18 June 2013 20 Chiu Peace, ’10 online news sites must follow traditional media regulations: MDA’ Yahoo! News < http://sg.news.yahoo.com/10-online-news-sites-must-follow-traditional-media-regulations--mda-103906167.html > (Singapore, 28 May 2013) 21 Kevin Lim, ‘Singapore to regulate Yahoo, other online news sites’ Reuters < http://www.reuters.com/article/2013/05/28/net-us-singapore-internet-idUSBRE94R0G220130528 > (Singapore, 28 May 2013) 22

ibid

making on the other.

Quite obviously, certain co-ordination decisions are relatively uncontentious, for example Raz cites the example of driving on the left or right side of the road. However, the issues raised at Singapore’s recent General Election 2011 provide another lucid illustration of how Razian authority proves inadequate and incompatible with a comprehensive conception of mature democracy.

Examples of such issues include the PAP government’s immigration and housing policies as well as the projected population targets. For example, the PAP government’s population white paper was seen by many citizens as dismissive rather engaging and reflecting only the executive opinion as opposed to the consensus of the grassroots. As Prime Minister Lee noted in a post-election news conference, the results marked ‘a distinct shift in Singapore’s political landscape as many Singaporeans wished for the government to adopt a different style and approach’ with many desiring to ‘see more opposition voices in parliament to check the PAP government’23. This can be interpreted as the electorates’ expression for greater participation/input in governance and decision-making. In an Arendtian sense, this is a welcomed development where Singaporean men and women had the courage to interrupt their routine activities, to step forward from their private lives in order to create a public space24 for political discourse – interrupting the automatism of political apathy and moving toward a more vibrant and mature democracy.

RECONCILING THE SCA AND DEMOCRACY? However, at this point this essay must highlight the distinction between perfect theory and practicable governance. As Raz notes, ‘democracy is not the only regime that can be legitimate nor are all democratic governments legitimate’25. He 23 ‘Singapore opposition make ‘landmark’ election gains’ < http:// www.bbc.co.uk/news/world-asia-pacific-13313695 > (Singapore, 9 May 2011) 24 ‘Hannah Arendt’ Stanford Encyclopedia of Philosophy http:// plato.stanford.edu/entries/arendt/ 25 Raz, J, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) Minnesota Law Review 90

warns that we ‘should not fall prey to the current much abused democratic rhetoric’ and reminds us to keep a clear-sighted and critical perspective on the nature of democratic institutions26. The apartheid system of South Africa provides a good example of this. Although often looked at through the lens of rule of law debates, it could be argued that during the apartheid era, South Africa still maintained democratic procedures and institutions. Therefore there is ‘nothing to prevent a perfectly fair procedure from being perfectly ludicrous’.27 Second, as McBride points out in support of the SCA, there is the practical problem of knowledge-asymmetry28 between ordinary citizens and the executive – in such situations the PAP government’s expertise cures this knowledge deficit, thereby reaching the right decision. Furthermore, the reality of our political landscape today is such that great weight is placed on sound governmental decisions and policies. Finally, this essay argues that there is a contradiction between democracy in theory and in practice. Technical expertise and knowledge are key elements to the successful administration of any democratic country or state. However, as Rondel rightly notes, the very logic of expertise in governance contradicts democracy’s egalitarian dimension because this suggests that some voices shall count more or be heard louder than others29.

Rondel highlights that when one claim’s expertise on some topic, one is implicitly claiming a unique right to be heard and consulted on that topic.

Therefore, expertise thus entails authority, both in the sense in which one ought to be consulted and that one has the right to rule – after all, what is the good of experts, if not to provide expert guidance?

At this point, it would seem that the SCA and democracy appear irreconcilable – and this essay will not attempt to reconcile these concepts. In closing, this essay argues that from a practical point of view, we should accept that both these theories may never be perfectly reconciled.

Having earlier established that governments are often heavily evaluated on their technical 26 ibid 27 David Rondel, ‘Raz on Authority and Democracy’ (2012) 51 Dialogue 2, 221 28 Mark McBride, ‘Darwall Versus Raz on Practical Authority’ (2011) 3 Public Reason 1, 76 29 ibid 27 at 217.

expertise and outcome of decisions, this essay argues that our goal should be to make decisionmaking procedures as democratic and inclusive as possible. For example, the PAP could employ a more Habermasian approach in decision-making.

Habermas summarises his idealised conception of practical discourse in the “discourse principle”, which we might state as follows: A rule of action or choice is justified, and thus valid, only if all those affected by the rule or choice could accept it in a reasonable discourse – legal political discourse30. This added element of consultation and deliberation while admittedly incurring more time and resource expenditures would bolster the legitimacy of the PAP government’s policies and decisions while maintaining considerable efficiency – this is of course assuming its policies continue to generate successful/correct outcomes.

CONCLUSION As Raz himself emphasises, de facto authority must be differentiated from legitimate authority31.

However, upon close scrutiny, it is evident that although the SCA makes an excellent guide for de facto political authorities, perhaps even justifying the demands it makes of rational citizens, it does not make authority legitimate. A comprehensive conception of authority requires more than just conformation to reason to establish an obligation to obey. This suggests that Raz’s SCA is wanting in comparison with the SCT of Hobbes, Kant and Rawls. However, as this essay has noted, consent theories such as the SCT are hypothetical thought experiments which do not correspond with reality. Furthermore, consent expressed through democratic procedures may not be the only way to justify legitimate authority. In fact aside as noted, it could even lead to disastrous or ludicrous outcomes because of information/knowledge asymmetry. In extreme cases, like the apartheid system, it could even lead to perpetuation of discrimination. In conclusion, as argued in the final segment, this essay submits that despite its deficiencies, the SCA can be supplemented with additional procedures such as Habermas’ ‘discourse principle’ to remedy 30 ‘Jürgen Habermas’ Stanford Encyclopedia of Philosophy <http:// plato.stanford.edu/entries/habermas/#HabDisThe> 31 ibid 2 at 6.

Raz’s rejection of consent.

TO INFINITY AND BEYOND PAUL NG is the global head of aviation at Stephenson Harwood

returning to Singapore after 18 years abroad. He shares with us how

by Tania Teng

Many Singaporean Law students studying in the UK are attracted by the possibility of working in a place away from home, whether to extend their time abroad or simply to step further beyond their comfort zones.

While it may be clear for some that this is the path to pursue, others may hesitate in undertaking this major step. This article hopes to provide an insight into the overseas work experience â&#x20AC;&#x201C; complete with perseverance, sacrifice, and a sense of fulfillment at having successfully journeyed through this path.

Having worked in jurisdictions apart from Singapore, could you share with us your experience?

Returning to Singapore after having graduated at the height of the English recession in the early 90s, I applied for and did my pupillage in a local shipping

firm, and had a lot of fun. In those early days, much of the work for pupils was rather menial and not particularly challenging mentally.

After I qualified I realised I had to get serious and build up my experience with more challenging work.

Purely by coincidence, a New York Wall Street firm who was building their Singapore office noticed me on a transaction and shortly thereafter offered me a job.

Being young and wanting to live overseas, I was soon lured to the bright lights of Hong Kong and joined Allen & Overy during the heady years around the handover in 1997 when Hong Kong became a special administrative region of China.

But somehow, institutionalised legal training in

satellite offices was always going to be wanted. So I made a bold move to apply for a position in London, with Freshfields. In retrospect, I had made my application before the Asian financial crisis and got quite a few offers, although moving from Hong Kong to London meant a huge paycut. My real salary almost halved as I was going from a jurisdiction with a 15% income tax to one which was almost three times more, with a much higher cost of living.

Life was pretty hard and sometimes quite lonely, but I never gave up. I felt privileged to work with lawyers who were some of the best in the market - saw them in action solving some of the most complex commercial and legal problems. Being in the company with some of the most intelligent minds in the industry was addictive. And that was where I stayed for the next 11 years - making partner in 2007 - it was a defining moment as no Asian finance male partner had ever been made up in Freshfields’ 300 year history.

I returned to Singapore recently with the boutique top tier transport firm Stephenson Harwood as their global head of aviation - the first Asian to lead a global practice within the firm.

What was the attraction of an overseas work experience for you?

I think it was a combination of things. I have already mentioned training, but being in England, which was where many of the principles of common law were developed, was somehow meaningful for me. These principles were the basis of their way of life, which made it easier to understand them when you are there.

London is a great place for a young lawyer to see what the big boys were up to and to partake even in a small way, in those early transactions. So in summary, working with the best people on the best deals, and the opportunity to train your mind because you are close to all the ingredients that would help you to understand things more easily than if you were further away.

Having worked in Singapore, American and British firms, could you tell us whether there is a distinct legal working culture in each jurisdiction?

This is a difficult question, and any generalisations will not do justice to the relevant type of firm. Perhaps I can say, the international firms I have worked in all display cultural traits of their home offices. For example, a New York firm in Singapore would observe Fourth of July as a significant day to get together even though it is not a public holiday in Singapore. They were just different.

Perhaps I can say that when compared to local law firm there are more nationalities involved. My current team in the office consists of Finnish lawyer; an Australian lawyer, an Indian lawyer, a German lawyer and a Canadian lawyer.

Apart from the work itself, how was it like on a social and cultural level of interaction?

Going back to London had its challenges. This is because when you are a student with other local students, they are as curious about you as you are about them. Therefore social interaction has a basis on which to progress. But when you work with them, it’s a different thing. Curiosity very quickly becomes competition - but it’s not necessarily adversarial.

Social relations at work, at the best of times is a complex matter - especially when your peers are highly intelligent and motivated. I would say arrogance will “kill” any opportunity for a happy life at work.

Humility and an ability not to take things too seriously (especially when they go wrong) is essential.

In my experience, many Singaporeans who start off in international firms leave within the first three years because some seem to feel they are not appreciated, or that they have few friends and some even feel a bit persecuted for being different. They need to persevere as building relations at work needs a large amount of time investment especially if you are from a completely different country, culture and background.

You sound like you were having a good time in London.

What made you decide to return back to Singapore?

I didn’t - I was returning to Asia. In fact for the first two years in Asia, I was based in Shanghai and then in Hong Kong for the next three.

Stephenson Harwood had many offices in Asia. They offered me the choice of any office, so I had to decide.

I think my selection of Singapore was driven partly by work and family. On the work front, I had developed some core clients in South East Asia and they were in the fastest growing sector of my industry. They would be in closer proximity than if I were in Shanghai, for example. So work-wise there was encouragement from my clients. Family wise, of course my parents were getting older, and bringing children up in Singapore has its merits. It’s not polluted and safe. I have a pair of delightful (but sometimes headstrong) twins. They were born in Hong Kong.

“

If you want to progress to the top, you

Law is often seen as the business of people; was it difficult to establish a network when you returned?

I think without a doubt, you would be disadvantaged when you arrive, compared to your peers who have been there for a decade earlier than you. This is a relationship business and therefore they would have many more years with their clients.

But if you come back with new technology, solutions, and expertise, which are scarce in the market - and you are able to articulate this to your targeted clients then you can still do well. The practice of law is a skill-based business so having superior skills would also count to your selection.

In my case, even before arriving in Singapore, I had already developed close, trusted advisor relationships with core clients, so transitioning to Singapore only enhanced these relationships.

How do you think your overseas working experience shaped you? In what ways has it differentiated you from the rest of your peers?

Only speaking from my own personal experience having spent about two years in a local firm and thereafter the next 18 years offshore – in the field of finance; I have had the fortunate opportunity to be involved in some of the largest and complex transactions in the industry.

These were deals that I would not otherwise have been able to experience with a local firm.

The experience does change you - e.g. having to manage a closing where there are over 30 banks signing over 10 thousand documents; or doing a due diligence for a multi-billion dollar company managing a team of

over fifteen lawyers reviewing documents across eight jurisdictions - especially when you know the buck stops with you. It builds your confidence and belief in your own ability to do things, which you never knew you were capable of. It’s a bit like national service.

In terms of attributes, being overseas does force you to keep an open mind. Having spent over a decade in a “magic circle” law firm, you are up against the very best lawyers all the time. So if you want to progress to the top, you not only must master your tools of trade, but overcome any stereotyping that your environment puts you in.

What this means is that the pursuit of excellence (i.e. perfection or near perfection in documentation) is merely the starting point. In addition, a high level of EQ is needed for dealing with people of different cultures and backgrounds.

What advice would you give to law students or young lawyers who aspire to have a long and successful career in the legal profession?

Again speaking mainly of the attributes that I try to continue to hone in myself, I think it is stamina, optimism that it will get better, constantly learning and that within reason there is no compromise for excellence in the delivery of work.

Every day must be an opportunity to become a better lawyer. There are some people who have stopped getting better or learning the trade, and spend the remainder of their careers politicking, to make sure no one else surpasses them. I feel this is a sad existence and such people are actually missing out on the adventure of discovery of new and better things which the legal profession can offer, even if they are able to maintain

flickr.com/depbluephotography

THE SKELETON IN THE CLOSET The criminalisation of homosexual acts in Singapore is summarised by S.377Aof the Penal Code. With changing social attitudes and times, this article examines the pressing need to review our existing laws.

by Wong Pei Ting

University College London

INTRODUCTION The journey of Singapore from rags to riches, fishing village to thriving metropolis, is one that is well-chronicled. An underdog that emerged as an economic miracle is the well-rehearsed narrative proudly paraded in history textbooks.

Singapore is a city-state where superlatives abound: most transparent government, best place for business, most excellent airport…

– the list goes on. Amidst its perfection, the Singapore known for her clockwork efficiency and impeccable achievements hides a community of people deemed social deviants: homosexuals.

The law against homosexuality is summarised

by S.377A of the Penal Code, which finds its roots from the Criminal Law Amendment Act passed in Britain in 18851 during the Victorian era characterised by its rigid code of conduct.

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

1

Lim Meng Suang and Anor v Attorney-General [2013] SGHC 73

The provision, imported in 1938, remains a part of our laws. The relevant provisions were repealed in Britain in 1967 for consenting males over the age of 21 in private situations, leading to remarks that this was no more than a colonial legacy that the government clung to2. However, despite its foreign sources, 377A has since found justifications for its place in Singapore society.

Whilst 377A is the primary law invoked in control of homosexuality, it is supplemented by other provisions3. When the Penal Code was reformed in 2007 to bring it “up to date”4, local activists for gay and lesbian rights seized the opportunity to lobby for the repeal of 377A and a rare parliamentary petition was brought. The efforts were futile, but fresh constitutional challenges have been launched in two separate cases in the last 3 years. The issue can scarcely be said to be unimportant: Social attitudes have been evolving with the times, and more are increasingly willing to accept their homosexuality. The community of those who identify as homosexual is burgeoning and homosexuality has become something that cannot be trivialised. In light of this, it is more important than ever to review our laws.

377A AND THE HUMAN RIGHTS ARGUMENT The constitutional arguments against 377A are contained in Article 9 (the right to personal life and liberty as qualified by the law) and Article 12 (equality before the law) of the Singapore constitution.

Firstly, 377A is contrary to JS Mill’s harm principle.

Every individual has the right to do as he pleases up to the point where harm is caused to others. The only justification of restricting rights is protecting others from the individual – there is no room for State interference in the name of protecting the individual from himself.

2 Yvonne C.L. Lee, “Don’t ever take a fence down until you know the reason it was put up – Singapore communitarianism and the case for conserving 377A” [2008] Singapore Journal of Legal Studies 347 3 Meredith Weiss, “Who Sets Social Policy in Metropolis?

Economic Positioning and Social Reform in Singapore” (2005) 27(3) New Political Science 267: S.354 of the Penal Code criminalises “intent to outrage modesty” and is commonly used in police entrapment cases; S.19 of the Miscellaneous Offences Act targets soliciting in a public place and S.294A of the Penal Code is directed at cruiser gestures to signal police decoys.

4 Ministry of Home Affairs, 2006

However, this approach has duly been rejected

by Singapore: there is no valid defence in consent (something construed to be iconic of a lack of civil liberties by gay rights activists).

Next, the effect of 377A is different treatment under similar circumstances. 377A specifically singles out homosexual men. Sexual relations between consenting adults are legal for heterosexuals and lesbians, but criminal for gay men. Whilst women can technically be prosecuted under S.20 of the Miscellaneous Offences (Public Order and Nuisance) Act Cap.184 for “indecent behaviour” in public settings, the penalty is substantially less severe.5 There are, however, equally viable arguments for the retention of 377A, namely, the protection of public morality and health. The laws are reflective of a value system in any society, an indication of shared morality. 377A is the government’s selfprofessed bulwark against the perceived tide of immorality that homosexuality is associated with. This is not inconsistent with criminalisation of other “private” acts such as incest, suicide and euthanasia. This practice of legal moralism sacrifices individual liberties for the sake of the common good, whereby individuals whose way of life is deemed “immoral” by the orthodox majority will have their lifestyles repressed.

Efforts seeking to justify 377A have mitigated its harshness with the assertion that 377A is not proactively enforced. In practice, all those convicted under it have been caught in public settings, though a man can accuse another of gross indecency in private settings. The section is frequently invoked in conjunction with rape, paedophilia or other crimes6. This is, however, immaterial. 377A remains as an unhealthy statement of principle; it marginalises a not insignificant proportion of the population, labelling them criminals. The lack of active enforcement is distinct from legality. The legal position is clear-cut, and the threat of prosecution is very real. It is not unthinkable that the political stance of the 1980’s and 90’s will be reverted to, where the practice of police entrapment at 5

The penalty under S.20 is jail not exceeding one month; those

377A is a mandatory custodial sentence up to 2 years.

6 Supra note 3

homosexual haunts was widespread7.

THE SKELETON IN OUR CLOSET: SUPPRESSION OF DEVIANCE FROM HETERONORMATIVITY Strong states mix poorly with weak political cultures; the suppression of homosexuality is twofold. It is concealed by the homosexual himself or herself as part of impression-management motivated by fears of persecution and stigma attached to the word, and also by the state as evidenced in social and legal policies.

In the 1980’s and 90’s, homosexuality rarely featured in public discourse. Conversely, it was persecuted widely. Police entrapment was a common practice, with young officers dispatched to bait homosexuals and organised raids on nightspots known for their gay clientele8.

Comfortingly, Singapore has distanced itself from this bleakness. Today, gay activism is backed by the media and the arts. The proliferation of computers and internet access has been a useful ally in this development9. Lifestyle websites have proliferated with the thriving gay scene – SiGNeL, Friadae. com and SGBoy are a few of a slew of examples.

The Pink Dot event takes place annually with firm support from both homosexual and heterosexual communities. In spite of these improvements, the presence of 377A remains a daily reminder that deviation from convention invites severe consequences. It is employed as one of several devices by which socio-spatial expression of homosexuality is tightly controlled by the state.

The government’s consistent message has been that the gradual tolerance of homosexuality is conditional upon homosexuals remaining veiled from public10. In 2003, Prime Minister Goh Chok Tong assured that the civil service had ceased discriminating against homosexuals, and suggested that the government would turn a blind eye to a 7

International Gay and Lesbian Association: There are no

underrepresented – many of the accused pleaded guilty early on in the stages of prosecution to escape media sensationalism.

8 Kenneth Paul Tan & Gary Lee Jack Jin, “Imagining the Gay Community in Singapore” (2007) 39 9 Supra note 3 10 Kean Fan Lim, “Where Love Dares (Not) Speak Its Name: The Expression of Homosexuality in Singapore” (2004) 41 Urban Stud 1759

gay “movement” so long as they did not “flaunt [their] gay rights”11. This notion has not changed; in 2007, Prime Minister Lee Hsien Loong asserted that endorsing and encouraging homosexuality “openly” would promote homosexuality as an accepted social norm – something undesirable because it was perceived to destabilise the strictly traditional notion of family12.

Notably, lesbianism is completely unrecognised by the law13. The corollary is that sexual acts between lesbians are not illegal. However, disregarding lesbianism is an even more extreme, albeit subtle, form of oppression than outlawing lesbianism. Officially, lesbianism is non-existent; unfathomable and unimaginable, it falls beyond even the contemplation of the legislator. Whilst sexual intercourse between lesbians can technically be prosecuted under 377A of the Penal Code, no such cases have been brought14.

Contributing to this veiling of homosexuality from the public sphere is scant political activism as a direct result of state regulation: the informal homosexual group People Like Us (PLU) was outlawed, the official reason being that the mainstream moral values of Singaporeans were conservative and society would not approve of PLU’s activities. Thus, it was “contrary to the national interest”15 to grant legitimacy to the promotion of homosexual activities and viewpoints.

With legal and political fetters, the homosexual rights cause has been left to the arts to pursue.

The arts are an invaluable outlet for the expression of gay activism, but even this fails to escape the long arms of the Censorship Review Committee.

In 1994, artist Josef Ng’s performance protesting police entrapment (which involved snipping pubic hair before a small audience with his 11 Asia,

10

David Clive Price, “Singapore: It’s In to Be Out” (Time August 2003) <http://www.time.com/time/magazine/

interview transcript: <http://www.yawningbread.org/apdx_2003/imp-116. htm> 12 http://www.asylumlaw. > 13 Judith Butler, “Imitation and Gender Insubordination”, in: D. Fuss (Ed.) Inside/Out: Lesbian Theories, Gay Theories (Routledge 1991) 14 Supra note 3 15 PLU, The Registry of Societies and Us, People Like Us, April 17 2004

back faced to them) resulted in the artist being fined $1000 and banned from making future public performances. The Necessary Stage’s 2003 production, Mardi Gras, faced similar censorship: Plans to include a non-fictional on-stage “coming out” were abandoned after failing tests set by the Committee. The scenes amounted to homosexual “social activism”, even after the 2002 amendment of official censorship policy in light of increasing globalisation. Although the practice of demonising homosexuality, previously likened to paedophilia and bestiality, was formally abandoned, promotion of homosexuality as a legitimate lifestyle is still strictly censored16.

Today, homosexuality remains quiet in the public domain, but visibility is evident and growing17.

AN INTERNATIONAL COMPARISON AND THE “WESTERN IMPERATIVE” Legal proscription of homosexuals is particularly adverse in Singapore because it works in tandem with the government’s self-imposed crusade against the declining birth rate and aging population. The emphasis on the traditional mould of a nuclear unit is evinced by our social policies. An offensive of incentives and disincentives tout the joys of marriage and urge women to settle down and procreate18.

Advertising campaigns attempt to drill into the conscience of young Singaporeans that creating a family should be a life goal. Pro-natal policies are omnipresent.

Even the Housing Development Board chips in with its “Single Singapore Citizen Scheme”19.

The heterosexual character of the official family ideal is a significant obstacle to the status of homosexuality20. Coupled with the local patriarchal custom of preserving the male lineage21, these 16 Benjamin H. Detenber, “Singaporeans’ Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality” (2007) 19 17 Baden Offord, “The burden of (homo)sexual identity in Singapore” (1999) 9(3) Social Semiotics 301 18 Supra note 3 19 The scheme allows single people to purchase small resale apartments in less than prime locations only if they are above the age of 35.

Priority of housing is given to those falling within the social norm.

20 Natalie Oswin, “Sexual tensions in modernising Singapore: the postcolonial and the intimate” (2010) 28(1) Environment and Planning D: Society and Space 128 21 Laurence Leong, “Singapore” in Donald J West (Ed.), Sociolegal

legal and social policies deal a crippling blow.

They exert pressure on procreation, invoking guilt in female and male homosexual for not fulfilling patriotic and filial duties, thus suppressing socalled deviant lifestyles.

Whilst some countries clamour for the right to same-sex marriage, the situation in Singapore remains stagnant. If the fight for gay rights were to be conceptualised as a hierarchy of progressiveness, beginning at the right to same-sex sexual activity, to non-discriminatory social policies, followed by recognition of same-sex relationships and same-sex legal unions and topped off by anti-discrimination laws, Singapore would be on the lowest rung of the ladder. Alongside countries like Saudi Arabia and Burma, Singapore criminalises homosexuality in totality. The former is a country where even basic women’s rights are a daily struggle, whilst the latter has been under the governance of varying forms of military rule since 1988.

The contrast between the attitudes towards homosexuality has repeatedly been explained away by the all-too-convenient dichotomy between Confucian/Asian values and Western imperialism. At the 1993 UN World Conference on Human Rights, Minister for Foreign Affairs Wong Kan Seng said that homosexual rights were a Western issue, and thus irrelevant to the conference. Singapore does not and cannot decide her policies in pursuit of obtaining approval from Western nations. However, tolerance of homosexuality is not merely an ideal imported from the West – other Sinicised cultures have also decriminalised homosexuality22. Most notably, Hong Kong, similar to Singapore in that it is also has a history of colonialism, and is today a highly urbanised economy with a demographic of strong middle classes, decriminalised same-sex sexual activity in 1990.

Countries that have decriminalised same-sex sexual activity range from the traditionally liberal European states and USA to the surprisingly progressive Cuba, Iraq, China and North Korea.

Control of Homosexuality: A Multi-Nation Comparison (Plenum Press 1997) 22 Supra note 8

“WE DO NOT THINK THAT OUR ARRANGEMENTS WILL SUIT EVERYBODY. BUT THEY SUIT OURSELVES”

MOVING FORWARD: A MIDDLE GROUND? Equality between race and gender is a given in Singapore, the former protected constitutionally and the latter by the Woman’s Charter. Though gender and racial discrimination cannot be said to have been completely eradicated, the legal position has helped to establish their permanence and indispensability. Perhaps there will come a day where homosexual rights are no longer regarded controversial or novel and accepted as the norm – just like woman’s rights or racial rights. Indeed, it is difficult to imagine living in the era where racial or gender discrimination was widespread, even sanctioned by law.

Admittedly, equality and homosexual rights sound simple on paper. The truth is that Singapore might not be ready for a displacement of the moralistic notion that homosexuality is inherently wrong: Conservative factions make up the majority, and 85% still find homosexual behaviour unacceptable23.

Yet, the issue need not be controversial. A legal position leaning toward either side will inevitably produce dissatisfaction. The novel solution of trimming24 provides a useful middle ground.

Trimming is a technique used to rephrase the law such that it is worded satisfactorily to opposing factions, avoiding extreme views that would be divisive. The state thus refrains from taking controversial positions– whether criminalising or decriminalising sexual acts between homosexuals– and no community will be overtly alienated.

A CONCLUSION Above were the words spoken by Wong Kan Seng at the 1993 World Conference on Human Rights.

Singapore acknowledges the criticism of her harsh and intrusive laws, but dismisses the pressure as wholly external. Perhaps this was true in 1993, but Singapore is changing. Laws and policies that aim to smother the homosexual scene are anachronistic in a contemporary setting25. Pragmatism validated the post-independence developmental trajectory – one that undertook economic progress as an overriding imperative. In the interest of expediency, the individual’s rights were postponed to that of the community, relegating civil rights that did not directly augment economic expansion to the backseat. However, as Singapore cements her position amongst the developed nations of the world, she can afford to look into areas outside economic excellence.

In 377A’s case, this entails criminalising only acts carried out blatantly in public, mirror provisions for lesbians and heterosexuals so as to equalise the standards. Though forbearance from taking a concrete stand may draw flak for being spineless, such is the inevitable trade-off for a tolerant, pluralist society.

23 Ministry of Community Development and Sports, “Social Attitudes of Singaporeans” (2002) 24 Cass Sunstein, “Trimming,” (2008) Harvard Public Law Working Paper, No. 08-15

25

Supra note 21

Pink Dot 2013, an annual rally in Hong Lim Park organzied in support of the LGBT (lesbian, gay, bisexual and transgender) community in Singapore.

COMING OUT OF THE CONSTITUTIONAL CLOSET Where does Lim Meng Suang v AG leave s.377A?

by Jerrold Yam

University College of London

INTRODUCTION In unravelling Justice Loh’s comprehensive judgment in Lim Meng Suang v AG, 1 which involves the plaintiff seeking to impugn s.377A of the Penal Code2, and understanding the ramifications of judicial reasons behind the predictable sustainment of s.377A, this essay attempts to identify issues of legal controversy that may at times reveal how the rule of law is inevitably plagued by countervailing forces of morality, politics and public opinion.

BACKGROUND As articulated by the Court of Appeal in Tan Eng Hong v AG3, which similarly challenges the constitutionality of s.377A albeit from different factual origins, there is “real public interest”4 in allowing such an application under Article 12 of the Constitution. This stems from the social and political repercussions which the continued existence or repeal of s.377A sets in motion through 1 2 3 4

[2013] SGHC 73 Cap 224, 2008 Rev Ed [2012] 4 SLR(R) 476 Lim Meng Suang, para 17

“affecting the lives of a not insignificant portion of our community in a very real and intimate way”5.

Following the undisputed6 locus standi, with Justice Loh reserving judgment on Tan Eng Hong, s.377A has been judged as constitutional in Lim Meng Suang. What does this spell for the future of s.377A and those inevitably affected by virtue of sexual orientation?

Outrages on decency s.377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

Equal Protection 12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

5 6

Tan Eng Hong Lim Meng Suang, para 12

UNDERSTANDING THE AFTERMATH OF LIM MENG SUANG Firstly, Justice Loh asserts the alignment of s.377A with Article 12 by constructing a dichotomy between equality and equal treatment. Not only is Article 12 immediately accompanied by clauses that profess not to “invalidate or prohibit” provisions regulating “personal law”7 while upholding the supremacy of parliamentary legislation through preventing discrimination unless “expressly authorised”8, Justice Loh believes that social classification inexorably heralds “inequality of varying degrees”9. Correspondingly, Article 12 “does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike”10, citing Ong Ah Chuan v PP11.

This seems irreconcilable with the extent of inclusiveness in s.377A. According to communitarian moralists, who attempt to consider how “individuals are socially situated and do not exalt individual autonomy as the ultimate value”12 while upholding “the heterosexual family as the social norm in Singapore”13, to prosecute male homosexuals under s.377A and absolve female homosexuals of the legal burden seems counterproductive. Not only is the heterosexual family similarly compromised by homosexuals of both genders, this reveals how, to borrow Justice Loh’s poignant words, all persons in like situations are not to be treated alike.

Secondly, Justice Loh has held that both limbs of the test for constitutionality under Article 12(1) or the “reasonable classification” test (Nguyen Tuong Van v PP14) have been fulfilled by s.377A; male homosexuals or bisexuals who perform acts of “gross indecency” on another male is based on an intelligible differentia, while the rational relation 7 Art 12(3)(a) 8 Art 12(2) 9 Lim Meng Suang, para 44 10 Ibid 11 [1979-1980] SLR(R) 710 12 Yvonne C. L. Lee, Singapore Commnitarianism and the Case for Conserving 377A (Singapore Journal of Legal Studies, 2008), p.351 13 Lim Meng Suang, para 29 14 [2005] 1 SLR(R) 103

to the purpose of s.377A is to “criminalize male homosexual conduct because such conduct is not acceptable or desirable in Singapore society”15.

However, with regard to the first limb, the penal code is silent and at best inadequate in defining the actus reus of s.377A; what acts constitute “gross indecency”?16 Some vague form of direction is found in the common law and articulated by Chief Justice Yong Pung How sitting in the High Court in Ng Huat v PP17—“what amounts to a grossly indecent act must depend on whether in the circumstances, and the customs and morals of our times, it would be considered grossly indecent by any right-thinking member of the public”— which constitutes more an indication of factors determining the “gross indecency” of an act than a conclusively hermetic definition.

Additionally, the second limb of the reasonable classification test has been elaborated at length

by Justice Loh to justify a “complete coincidence between the differentia underlying the classification prescribed by the legislation and the class defined by the object of that legislation”18. This seems to suggest that all parliamentary legislation would be recognised by the independent and necessarily separate workings of our judicial system as long as they fulfil both limbs of the test, which are substantively thin and brings to question the existence of legislative controls on unfettered parliamentary sovereignty, though its democratic mandate provides its own safeguard and accountability to the electorate. Nevertheless, Justice Loh has taken pains to assure that “it is both the duty and the constitutional role of our courts to ensure that Parliament does not contravene the rights enshrined in the Constitution”19, before recognising the possibility of illegitimacy in legislative purpose20. Arguably, while courts adopt a reactionary mechanism to parliamentary legislation, issues of fundamental social and political substance, such as the decision in Lim 15 Lim Meng Suang, para 100 16 Lynette J. Chua, Saying No: Sections 377 and 377A of the Penal Code (Singapore Journal of Legal Studies, 2003), p.221 17 [1995] 2SLR 783 18 Lim Meng Suang, para 100 19 Lim Meng Suang, para 112 20 Lim Meng Suang,v para 114

Meng Suang, lie beyond the legal capabilities of the judiciary.

Thirdly, in justifying the legitimacy of the aforementioned purpose of s.377A, Justice Loh invokes historical practices in other jurisdictions; to him, “if a law has withstood the test of time, it cannot be devoid of any basis”, thereby coupling legal legitimacy with longevity. Not only does this seem perplexing especially in light of previously entrenched legal provisions relating to slavery and gender equality, there seems to be an implicit assumption that laws exist in oblivion of recent developments; therefore how good a law is depends on how long it has been practised. Drawing the same tangent with Justice Loh in invoking other jurisdictions, it is clear that “various common law jurisdictions…have gradually erased the archaism”21 of offences similar to the ones criminalised under s.377A, such as Hong Kong, England, Canada, the United States and New Zealand, among others.

Moreover, Justice Loh’s contention that “some portions of Singapore society today still hold certain deep seated feelings with regard to procreation and family lineage”22 raises three issues. Firstly, there is an assumption that the morality and value systems subscribed by “some portions of Singapore society” are allowed by the courts to supersede and oppress those subscribed by other portions, at the risk of Singapore becoming a majoritarian dictatorship. Secondly, “deep seated feelings” or emotions are an accurate and acceptable justification of the legitimacy of legislative purpose, thereby imposing the “majority’s will” even though democracy is defined equally by minority protection23. For example, Article 152 of the Singapore Constitution pledges the “responsibility of the Government constantly to care for the interests of the racial and religious minorities in Singapore”, with the “special position of Malays” legally recognised. Thirdly, the premise that the basic building block of Singapore society, 21 22 23

Chua, p.224 Lim Meng Suang, para 127 Chua, p.247

a family created by heterosexual marriage, is threatened by sexual acts defined under s.377A is dubious. Other sexual practices such as birth control, masturbation and even oral intercourse between heterosexual partners that do not lead to vaginal intercourse24 and therefore extinguishes the possibility of “procreation and family lineage” as described by Justice Loh are not criminalized, though they seem equally antithetic to the seemingly utopic heterosexual family ideal. In the case of contraception, it is arguable that this is an even greater threat since it involves a conscious and active prevention of pregnancy by a heterosexual couple capable of procreation in the first place. By Justice Loh’s argument in justifying s.377A due to its incongruence with the tradition of procreation and family lineage, it is arguable that consensual sex between heterosexual couples in which one or both parties are infertile should be criminalized as well.

CONCLUSION As much as the s.377A hearings symbolise the pioneering of a heretofore unseen, and therefore encouraging, sign of judicial willingness to address issues that are traditionally off-limits (the very question of constitutionality of parliamentary legislation was regarded to be unconstitutional in itself), how well such issues have been addressed create undulant repercussions not only in legislative history but the personal lives of many, if not all, citizens to a certain extent. Judging from the political and social developments that are intrinsically interwoven with the legality of s.377A, repealing the provision seems to be a matter of time. The appropriate question then is when, not how.

24 Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong Law Reform Commission, 1983), p.133

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LAWYERS IN THE HOUSE responsible for the legal affairs of their companies, but the scope of as an in-house counsel is not just a viable, but an ideal, career path.

by Kyle Koh

University College of London Photographed by Zachary Tan

Where did you work before moving in-house?

Chan Hock Sen: I qualified as a solicitor in England and did my articles in a firm called Jacques & Lewis. Then I worked at Clifford Chance for a couple of years before I joined British Telecom (BT) in the UK. I specialized in M&A at BT, which had a legal department of about 100 lawyers worldwide. After eight years in London I was transferred to Hong Kong to head up the newly created Asian legal department. I was head hunted by a French company called Thomson and subsequently joined Michelin as head of legal for Asia Pacific. I currently play multiple roles – tax director, legal head, country manager for Singapore and corporate development manager.

Raymond Clement: I spent about 15 years in practice in various local law firms before moving in-house.

Why did you choose to become an in-house counsel?

Chan Hock Sen: The pay was better than as a mid-level associate and it offered opportunities outside the law. Also large companies offer attractive non-salary benefits such as education: in my case the company sponsored my executive MBA. Raymond Clement: The principal motivation was to achieve a better work-life balance.

How does the work as an in-house counsel differ from that of a practising lawyer?

Chan Hock Sen: The job of in house counsel differs from company to company. You can create your own space depending on how competent you are at business. The principal difference between an in-house lawyer and external counsel is that when you are in house you are responsible

for the result of the legal advice, whereas as an external counsel you are responsible for the advice you give. In the latter case the client takes or leaves the advice whereas in the former you have the task of formulating the advice (sometimes with the help of external counsel) and implementing that advice. Implementation often is the challenge as it involves managing multiple disciplines such as tax, finance, R&D, manufacturing, marketing and sales etc. It helps if you have an MBA. Nevertheless when I hire for the legal department I first and foremost look for competent lawyers.

talent to in house positions provided you can be competitive with the remuneration.

Raymond Clement: You could (depending on the size of the in-house team) find yourself dealing with a far broader gamut of issues than you might be accustomed to dealing with in practice, as you become the organisation’s resource for all aspects of the business that could create legal exposure. There can generally also be a larger amount of administrative work to handle. An inhouse counsel can also contribute to and provide insight into the management of the organisation, and become involved in preparing organisational policies and in helping set standards of corporate governance.

Chan Hock Sen: It depends what you mean by flexibility. If you are a sole practitioner do you have flexibility to tell your clients to come back tomorrow because you feel like taking the day off?

There is certainly a better work-life balance when you compare the hours with those I used to work at Clifford Chance or Jacques. However, as you progress in your in-house job and acquire more responsibility, your life does inevitability becomes more hectic.

How much legal work is done in house? When is it necessary to consult external law firms?

Chan Hock Sen: In the case of Michelin, we do most of our work in house. We use external counsel for specialized matters such as litigation, and to help us with local law compliance in countries where we do not have resident lawyers.

Raymond Clement: You’d be surprised how much work is done in-house. There is often a (not unfair) expectation by management that external legal costs be reduced with the presence of an in-house team. Most in-house counsel would typically consult external law firms on areas requiring specialist expertise. Litigation is also generally outsourced.

Is it difficult to attract legal talent to in-house positions?

Chan Hock Sen: It is not difficult to recruit decent

Raymond Clement: To some extent that depends on the industry you’re looking at, but generally it hasn’t been difficult. Most lawyers I’ve come across have tossed around in their mind the idea of going in-house at some point in their careers.

Is it true that working in-house allows for more flexible working arrangements than practice?

Raymond Clement: Generally yes.

Do you have any regrets about going in-house? Do you miss practice?

Chan Hock Sen: I do not miss practice. There is a certain relief in not having to be a profit centre.

Raymond Clement: Apart from missing the occasional adrenaline rush that you get to experience in practice, I don’t regret the move.

What advice would you give to young lawyers who aspire to have a long and successful career in the legal profession?

Chan Hock Sen: Both avenues provide for an interesting career. My advice is for you to choose your employer carefully. If you are going to go in-house look for a professionally-managed legal department.

Raymond Clement: I think it’s important to be passionate about what you do.

THE OXYMORON OF MANDATORY PRO BONO The concept of mandatory pro bono has been a hotly debated topic within the legal fraternity. This commentary discusses recent developments with regard to the implementation of such a scheme in Singapore.

by Tania Teng

University of Birmingham

Mandatory pro bono has been a hotly debated topic within the legal fraternity, and perhaps with good reason. Pro bono is latin for â&#x20AC;&#x153;being, involving, or doing professional and especially legal work donated especially for the public goodâ&#x20AC;?.1 Yet, at times it is perceived as the thorn in the side of many lawyers; free work in a world of high hourly billables.

1 Merriam Webster, http://www.merriam-webster.com/dictionary/pro%20bono accessed on 12 July 2013

In recent times, a rising sentiment is that lawyers and legal professionals do possess a greater responsibility towards the community such that a prescribed number of hours for pro bono work is both necessary and beneficial for lawyers and the community.

The first consultation paper on Community Legal Services released in October 2012 proposed to make it compulsory for lawyers to do 16 hours

of pro bono a year2. In the second paper, this mandatory requirement was slated to be rolled out in two discrete stages3: Stage I) only mandatory reporting of hours is required, but actual hours are subject to an aspirational target of 25 hours; and Stage II) the mandatory number of hours required will also be implemented.

I shall argue that pro bono, taken in its right spirit, should not be made mandatory. By implementing a set number of hours, something that was voluntary is now made compulsory. It is, in the words of the SMU debate team at the inaugural Pro Bono Week debate organised by the Law Society in 2012, an oxymoron to establish a “common culture of volunteerism”4. In the past, the middle road approach between balancing the free will of lawyers and the necessity of pro bono had been taken: finding innovative solutions to incentivise and promote pro bono as a way for lawyers to contribute back to society. In light of the Community Legal Services scheme, the familiar ‘carrot and stick’ approach comes to mind. Are the dangling ‘carrots’ not attractive enough that we have to resort to the ‘stick’?

WHY THE NEED FOR MANDATORY PRO BONO? One does not have to look far for reasons as to why pro bono, or even mandatory pro bono, is necessary in our society. The Second Consultation paper on Community Legal Services Scheme identified three main objectives, that of the provision of legal services, the cultivation of an ethos of service amongst lawyers, and the strengthening of bonds within the legal community and with the wider community.5 The first objective deals with addressing the shortage of legal aid. The second and third objectives indicate a move to change the current legal culture of service, and it indeed is a worthy purpose to be introduced. One of the functions the legal profession serves in society is in the 2 Singapore Academy of Law, Discussion paper on Community Legal Services (Oct, 2012) para C.1.1 3 Singapore Academy of Law, Second Consultation paper on Community Legal Services (Apr 2013) paras C.1.1-C.1.4 4 Bryna Sim, ‘Law Schools debate on Pro Bono work’ (Straits Times, 11 Sept 2012) http://www.straitstimes.com/breaking-news/singapore/story/law-schools-debate-pro-bono-work-20120911 accessed 12 July 2013 5 (n3) para B.1.1

deliverance and pursuit of justice. By instilling a culture of service through mandatory hours, it brings lawyers closer to this purpose. There is no issue with doing paid work for the more wellheeled in society but by performing pro bono work, the legal industry may finally be able to shed its ‘money-hungry’ reputation. Public perception of the industry may improve.

Some also argue that lawyers have an ‘intrinsic responsibility’6 to provide legal aid as the legal profession is a noble and well-respected one. The stringent character and educational screening requirements imposed on lawyers greatly reduces the pool of practitioners. If one is obligated to give back to society in a way in which one is best suited to, be it educationally, monetarily or skills-wise – according to our capabilities – then lawyers, who are equipped with such specialised skills and training, have a greater obligation to fulfill.

Everyone deserves access to the legal system under the rule of law. Since lawyers have chosen a career that involves the deliverance of justice, then they are naturally imbued with this duty of pro bono.

PRO BONO SHOULD NOT BE MADE MANDATORY Passion for helping the underprivileged and a heart of service are what underlie the rationale for pro bono work. Lawyers may resent the additional responsibility from mandatory pro bono resulting in a laissez faire attitude towards it. In the extreme circumstance, the plan for mandatory pro bono could backfire if pro bono is no longer seen as ‘doing good’ but rather simply to fulfill an obligation. It also erodes away the feelings of satisfaction at having done something meaningful since it is no longer done out of free will.

It is frequently argued that individual lawyers should not be the ones to bear the brunt of what are perceived to be society’s problems. A problem of a lack of legal aid should not be the sole duty of lawyers to solve. By implementing compulsory pro bono, the message sent out to lawyers is as such: that they should be the only ones responsible for those who cannot afford legal advice. Other ways in which to improve this accessibility to legal aid should be explored alongside mandatory pro bono hours.

6

(n4)

Most lawyers recognise the benefits of pro bono and indeed the need for it. The number of lawyers who truly do not wish to contribute are few and far between, and I believe many simply have their reasons for not wanting or being able to do so.

While making pro bono compulsory achieves the first objective of increasing the provision of legal aid, it may not be as effective in fulfilling the second and third objectives of inculcating in lawyers a culture of service because it is more likely that lawyers resent more than appreciate the benefits of it. On this point, the impact of mandatory pro bono differs depending on how active lawyers are with pro bono. For those who already do pro bono regularly and above the number of mandatory hours, this scheme has no effect on them. For those who do so irregularly and less than the stipulated hours, they may struggle to find more time to increase this. For the rest who do not perform pro bono at all, 16 hours, although arguably few when spread out across the year, is likely to be significant.

A concern as to whether this number may rise in the future may be a further cause for resentment.

Practical problems also exist in the execution of mandatory pro bono. How many hours should it be? 16 hours may be an arbitrary number, with further empirical data required. Furthermore, issues of continuation arise when a lawyer has already fulfilled the required number of hours, with the case that he may be working still incomplete.

In such a circumstance, should he be allowed to pass the case to another lawyer?

Ultimately, mandatory pro bono as a concept can be alluring because it attempts to amend the shortfalls in the legal industry. While it is a noble aspiration, this commentary has highlighted considerations that may hinder the effectiveness of implementing a mandatory set of hours. It appears to be a solution after attempts at dangling ‘carrots’ have been deemed insufficient for results.

However, the negative effects of using the ‘stick’ approach need to be weighed out carefully lest the plan backfires. We may end up with a greater provision of legal services, but less-than-optimal performance; many disgruntled, disillusioned lawyers who would view pro bono as merely a greater thorn in their sides.

EXPOSING OTHERS TO RISK: is it a form of harm?

While harm is a necessary condition for tort liability, “the world is full of harm for which the law furnishes no remedy”, and there is therefore a distinction between recognised harms attracting liability in law, and unrecognised harms, which have no legal weight. This essay aims to show that exposing others to risk is indeed a form of harm, particularly with reference to Clare Finkelstein’s theory.

by Joshua Heng

University College of London

INTRODUCTION While harm is a necessary condition for tort liability, “the world is full of harm for which the law furnishes no remedy”,1 and there is therefore a distinction between recognised harms attracting liability in law, and unrecognised harms, which have no legal weight. Nevertheless, Clare Finkelstein puts forward the argument that exposure to risk should be a form of harm equivalent to the traditional outcome harms such as physical injury.

THESIS This essay aims to show that Finkelstein’s theory of risk as harm can be used to support the position that exposing others to risk is a form of harm via the consideration of the key concerns facing the theory: whether harm should be defined in terms of objective setback to legitimate interests, whether risk harms exist, and whether the fact that the continued existence of risk harms when the risk eventuates leads to overcompensation; via the consideration of support from authorities that can be drawn from the case law of the United States and the United Kingdom; and by consideration of the implications of adopting a definition of harm that includes risk.

RISK AS HARM Finkelstein adopts Joel Feinberg’s definition of harm as a setback to a legitimate interest in advancing her claim that exposure to risk (“risk harm”) is a form of harm. Feinberg identifies four senses in which the term harm is used: in a derivative sense,2 in a non-derivative sense,3 as a normative sense of a wrong,4 and as a setback to 1 Lord Steyn in JD v East Berkshire Community Health NHS Trust and ors [2005] UKHL 23.

2 Refers to the situation where there someone else’s interests have been harmed by proxy. Feinberg gives the example of a homeowner being harmed by vandals smashing his windows; the harm to the windows is derived from the setback to the owner’s interest in his property remaining whole.

3 This sense of harm can also be described as an increase in entropy of an object, such that the object is damaged, a physical process that can occur even without an owner with an interest in the object.

4 Refers to situations where one’s “indefensible conduct violates the other’s right”.

an interest. His conception of harm as a setback to an interest relies on the assumption that people will have a variety of personal interests, such as “physical health and vigor”, “emotional stability” and “income and financial security”, corresponding to the bodily, emotional and economic outcome harms recognized in tort.5 Having adopted the conception of harm as a setback to a legitimate interest, Finkelstein argues that risk harm constitutes an objective setback to a person’s legitimate interests regardless of whether the risk eventuates. By corollary, exposure to beneficial risks (“chance benefit”) regardless of outcome advances a person’s legitimate interests.

By this definition, exposure to the risk of physical injury would be as much of an objective setback to the legitimate interest of physical health as the ordinary and tangible “outcome harm” of physical injury.

SHOULD HARM BE DEFINED IN TERMS OF OBJECTIVE SETBACK TO LEGITIMATE INTERESTS? While Finkelstein uses Feinberg’s conception of harm as a setback to a legitimate interest as the basis of her theory, Feinberg, in his discussion of the moral limits of the criminal law, settled on a normative definition of harm as wrong, or “indefensible conduct [that] violates the other’s right”. This would seem to raise a prima facie question of whether Finkelstein’s choice of definition was correct. It should however, be noted that while Feinberg is discussing the moral aspects of the criminal law, Finkelstein is constructing a morally-neutral framework for defining risk as harm.6 Given that moral issues are beyond the scope of her theory, the avoidance of normative definitions, in favour of a definition allows a discussion of harm that would otherwise not be possible. Furthermore, Finkelstein is only attempting to establish that risk harms can be harm, not that risk harm should attract liability.

To evaluate harms as wrongs would be involve journeying into the areas of tort law dealing with 5 Zipurksy & Goldberg, 2002 6 “…no account of legitimacy will be required for our purposes, since it will suffice to notice that it is possible to give that notion moral content, and recognize that the precise contours of the notion of harm will depend on that content.” (Finkelstein, 2002).

whether certain harms should be cognizable, something beyond the scope of her theory. As such, it is reasonable for Finkelstein’s theory to involve a different conception of harm.

Another objection to the definition of harms as a setback to a legitimate interest has been raised

by Oberdiek,7 who argues that interests are mere preferences, and cannot be the basis of determining harm. In the example of a house filled with explosives, he notes that while having to live in it would be a setback to an interest and, irrational, given one’s stated preference, being forced to act in an irrational way may not necessarily be harmful. However, Finkelstein views the concept of legitimacy as one that is a “contested concept around the edges” and that this does not impede a discussion of the core legitimate interests. It is certainly arguable that not all preferences are legitimate interests. A preference for eating only foods coloured red, for example, is unlikely to be legitimate. Furthermore while there may be disagreement as to the legitimacy of whether certain interests within the penumbra, interests of a bodily, emotional, and economic nature are common to all and should sit squarely within the intersection of a Venn diagram mapping out legitimacy and interests. It is, however, conceded that as legitimacy is a substantial aspect of her theory’s chosen definition of harm, it is more difficult to execute a rigorous analysis of her theory given that the definition of legitimacy has been outsourced to a separate, and as yet undefined, moral theory.

Thomson8 makes a related argument by noting that while a person would prefer to be in a situation where harm is less likely, placing such a person in a situation where harm is more likely to occur would be against their preferences, but does not necessarily equate to harm. In short, her response to Finkelstein’s example of a choice between a higher or lower chance of cancer would be that the fact that everyone would could the lower chance only proves that people prefer a less risky life, and not that the higher chance of cancer would be harmful per se. On the other hand, to Lord Nichols, in his dissent in Gregg v Scott, a case concerning the misdiagnosis of a cancerous tumour, argues 7 8

Oberdiek, 2012.

Thomson, 1990.

that “the loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of at 55% prospect of recovery”.9 As such, Thomson’s position that the only valid harms are outcome harms would imply that in cases where causation is uncertain, it is only the operation of the balance of probabilities test that allows recovery in loss of a chance cases such as Gregg and Scott. Such a restriction may be reasonable when the court is determining whether certain types of harm should attract liability, but seems unduly harsh when the issue at hand is determining whether risk is harm.

DO RISK HARMS EXIST? It has been argued by Perry that risk is a method of bridging the information gap when we lack the knowledge to determine which outcome will unfold.10 However, assuming full information in a deterministic universe, it will be possible to determine from the onset whether the harm will or will not occur. As such, it is not possible for risk harm to exist. In the terminology of setbacks to interests, Perry’s argument is that the concept of risk of bodily harm as a setback to the legitimate interest of “physical health and vigor” cannot be sustained in a deterministic universe, as, with full information, there will be no question as to whether exposure to the risk will be a setback to an interest, as cases of exposure can be distinguished from the onset between cases where a setback is present, and cases where a setback is absent.

One response is to argue, as Finkelstein does, that the scenario described by Perry is only relevant if outcome harms are the only compensable forms of harm and does not provide reasons against compensating for risk harm. It is true that victims may prefer the certainty of compensation for risk harm as opposed to the possibility of claiming compensation when the risk harm resolves into outcome harm and that it may be preferable to have a system by which claims are not resolved on an all or nothing basis. However, her argument is undermined by the fact the mere preference that victims may prefer to recover for risk harm fails 9 While he would only allow such claims in the context of scientific uncertainty and medical negligence, this qualification arguably goes towards the separate issue of whether risk harm should attract liability.

10 Perry, 1997.

to address the thrust of Perry’s objection, which is concerned with the non-existence of risk as relevant to harm. His position militates against the recognition of risk harm as a setback to an interest in the first place.

Another point made by Finkelstein is that full information is rarely a situation that occurs in the real world, and that even the “folk concept” of probability with insufficient information nonetheless enables the useful information such as weather forecasts to be derived. This is certainly a valid point, and can be demonstrated using the example of a covered coin toss. It is true that, assuming a deterministic environment, the outcome of the toss is has already been determined and that an observer merely lacks the information to calculate the result, it is unlikely that sufficiently precise information on the numerous factors that affect the result of the toss would be available.11 In such real world situations, the knowledge that it will land on its head 50% of the time is still useful information.

Finally, it could also be argued that risk harm should instead be defined in a way that it encompasses an interest independent of the outcome harm. While Finkelstein notes that “agents have a legitimate interest in avoiding unwanted risks” she uses it in the sense that it is parasitic upon the interests of physical, emotional and economic nature; Exposure to a risk of bodily harm goes is an objective setback to the legitimate interest of physical wellbeing. On the other hand, this author would go further and submit that it is possible to recognise an interest characterised as the avoidance of unwanted risks. This would be consistent with the definition of risk harm as one that persists ex post, and, as discussed in the next section, resolves the issue of overcompensation between a sure process and a chancy process by recognising that the chancy process provides value over and beyond the outcome akin to participating in a lottery. This conception of risk harm as an independent interest also draws support from the fact that different people have different tolerances for risk. As Finkelstein notes, people with a preference for a life without risk would value the 11 Such factors would include the weight distribution of the coin, the air currents in the room, the quantity and direction force which was applied on the coin at launch.

chance benefit of a lottery ticket less than that of a person who embraces risk. While she uses this to support the distinction between outcome and chance benefit, this author would argue that this effect also works in my favour, as the conception of risk as an objective setback to the legitimate interest of physical health and vigour cannot easily accommodate the notion that the size of the setback would depend on the extent to which the affected person wishes to avoid risk because such harm should be objective, in that it is dependent on the actual impact on physical health. In contrast, by adopting the conception of risk avoidance as an independent interest, the size of the setback would clearly depend on the level of risk present, as modified by the individual’s risk tolerance. If risk harm is defined as an independent interest in this way, Perry’s objection that risk harm can be distinguished into cases where a setback is present, and cases where a setback is absent, as risk harm would be present in all situations where an individual is uncertain about the outcome.

IF RISK HARMS CONTINUE TO EXIST WHEN THE RISK EVENTUATES, DOES THIS RESULT IN OVERCOMPENSATION? Finkelstein calls her response to this the “Absorption Thesis” as where the risk eventuates, and the harm comes to pass, risk harm is absorbed in the sense that the value of the outcome already accounts for the value of the risk harm, there is therefore no issue of overcompensation. However, it seems odd to this author that in making the case for risk harm to be recognised as equivalent to outcome harm, Finkelstein ends up ignoring it in favour of outcome harm when the two exist simultaneously. This would imply that in cases where medical monitoring costs are awarded for where the defendants exposed the claimants to the risk of a medical disease, as Ayers v Township of Jackson12, they may be required to pay back the costs or have it offset from the damages awarded if they develop the disease after they make a claim for risk harm.

Another explanation for the overcompensation conundrum arises from a close analysis of the 12

461 A.2d 184, 186.

aspects of Finkelstein’s theory dealing with how risk harm and chance benefit persist in the cases when the outcome does not eventuate. She approaches the persistence of risk harm and chance benefit from a social and experiential perspective.

From the social viewpoint, Finkelstein considers the case where a friend intends to gift an item to another friend, and states that because one would feel gratitude towards the friend even where knowledge of the purchase only arose after the loss, it indicates that there may be a benefit even in the absence of outcome benefit.

While conceding that gratitude for another person’s efforts may not be equal to a benefit, she concludes that it is plausible that the reason that gratitude is appropriate is because there was some benefit even where the benefit is only attempted.

However, given gratitude’s status as an aspect of social interactions, it does not provide the basis for explaining persistence. Furthermore, given that an attempted gift from an absolute stranger, or the case of a gift to a sociopath, neither of which situations in which the recipient would feel gratitude, it would appear that the persistence of a gift would depend on the individual characteristics of the parties to the transaction.

Finkelstein’s much stronger experiential argument in support of persistence involves the concept of past experiences. She notes that while items such as opera tickets only have a monetary value ex ante as by granting the holder access to the opera, 13 they have the enduring benefit ex post arising from the “positive past experience” of having seen the opera. Similarly, a lottery ticket brings with it the chance to win the lottery ex ante and the positive past experience of having had the chance of winning the lottery ex post. This version of persistence explains the objection that requiring compensation from the thief of a losing lottery ticket only caught after the draw would be a windfall for the buyer of the ticket equivalent to getting a refund. Instead, the thief is not being required to compensate the buyer for the loss of the ticket so much as the lost “positive past experience” that the buyer would have enjoyed.

The use of the positive past experience is further 13

Assuming it has no value as memorabilia.

supported when considering Finkelstein’s view that both the ex ante and ex post chance benefit are the same, as illustrated by her conclusion that the thief of a losing lottery ticket should be required pay the buyer the value of the chance benefit arising from the ticket, and can be determined via a calculation of its expected value. 14 While expected value is a recognised technique for calculating ex ante values in accountancy15 and probability, they do not exist ex post. In accountancy, they are replaced by the value that actually arises. Similarly, when using expected value to value the ex post benefit of a stolen, losing lottery ticket, it is only a proxy for the positive past experience of participating in the lottery that the thief has deprived the buyer of. 16 This has the added benefit of being a closer analogy to the example of the opera tickets that Finkelstein raises, with the opera’s ex post value as the “intrinsic pleasure of the experience of attending”, valued with reference to the ex ante value of the price of the ticket.

Having established the ex post value takes the form of a positive or negative past experience, it can be argued that there is no issue of overcompensation.

It would not be odd that someone who has purchased a lottery ticket and won £1,000,000 would be better off than someone who receives £1,000,000 as a gift, as the “chancey process” involving the lottery ticket includes the positive experience of participation in the process, in addition to the benefit of having won £1,000,000.

By corollary, it would not be odd for compensation for damage done via an unsure process to exceed compensation for the damage done via the sure process, as the unsure process has the added negative experience of worry and anxiety. This would enable a more reasonable approach in cases such as Ayers, if a risk of the disease eventuates, where a subsequent claim for damages would not be reduced to take into account costs for medical monitoring expenses that were previously granted, as the medical monitoring costs would be damages for the risk harm, and the subsequent award damages for outcome harm.

14 15 16

Where the expected value = probability x possible value.

Law & Owen, 2010.

This has been described to me the joy of buying hope.

LEGAL SUPPORT Courts in the United Kingdom have not been open to the recognition of risk harms per se as equivalent to outcome harm. Tort in general does not recognise risk harm, but there have been promising signs within the “special mesothelioma jurisprudence”,17 where the courts have imposed liability and damages in accordance with the risk of harm. These cases, however, have been recognised as an exception that is unlikely to be introduced into the general body of tort law.

Fairchild v Glenhaven Funeral Services18 concerned the failure of employers to protect their employees from exposure to asbestos dust. It was held that the employers’ failure resulted in the employees suffering from an increased risk of contracting mesothelioma, was held to be sufficient to impose liability. While presented as a tool for establishing causation where evidence is lacking, given that liability requires harm to be imposed, it is arguable that this implies that risk harm can be harm. The Fairchild exception was subsequently extended beyond the employment context in Sienkiewicz v Greif, 19 where a council was be liable for exposing a pupil to asbestos dust during her time at school.

In Baker v Corus,20 another case concerning mesothelioma, liability was apportioned in according with the employers’ contribution to risk of harm suffered by the employees. This is further support for risk as harm, as valuation of risk harms is dependent on the degree of risk.

On the other hand, the Fairchild exception is inconsistent with risk harm in that the risk is required to eventuate, and does not support claims for mere exposure. It could be argued that these issues go towards whether risk harm should attract liability as opposed to the question of whether risk is harm, but given Lord Mance’s obiter statement in BAI (Run Off) Ltd v Durham & Ors,21 that “it is impossible, or at least inaccurate to speaker of the cause of action recognised in Fairchild and Barker as being simply ‘for the risk created’ by exposing someone to asbestos”, it would be difficult to sustain the argument that 17 Lord Phillips in BAI (Run Off) Ltd v Durham &Ors [2012] UKSC 14 quoting Burton J in [2008] EWHC 2692 (QB).

18 [2002] 3 WLR 89.

19 [2011] UKSC 10.

20 [2006] 2 WLR 1027.

21 [2012] UKSC 14.

the Fairchild exception is more than an evidential tool imposed by public policy requirements to establish causation, let alone convincing proof for the recognition of risk harm as harm. It should be noted that the decision of the Court of Appeal in Fairchild, which denied a remedy to the claimants, incited considerable public outcry.22 Furthermore, even this meagre support for risk as harm is unlikely to expand outside this special line of mesothelioma jurisprudence. In Sienkiewicz, Lord Mance considers the consequent expansion of the Fairchild exception “a lesson of caution … in relation to future invitations to depart from the conventional principles of causation”, and Lord Brown states that non-mesothelioma claimants should “expect little flexibility from the courts in their approach to causation” and that “the courts should in future be wary indeed before adding yet further anomalies [to the law of tort].” As such, it seems unlikely that courts in the United Kingdom will recognise risk harm as harm beyond its limited application in cases of mesothelioma.

In contrast to the relatively limited approach of the courts in the United Kingdom, case law in the United States is more varied. Cases where costs of medical monitoring have been imposed and where damages have been apportioned by market share liability can be interpreted in a way that is consistent with risk harm. There are also cases such as Schwegel v Goldberg,23 where the court increased damages awarded for head trauma to account for the increased risk of seizures and Roberts v Ohio Permanente Medical Group,24 where compensation for loss of chance of recovery from cancer was allowed.

Finkelstein argues that the court’s approach in cases such as Ayers v Township of Jackson, where the costs of medical testing and monitoring to enable early identification of disease were allowed, point to towards a principle that the conduct of the defendants had in some way harmed the claimants even in the absence of outcome harm. While Finkelstein rejects the alternative interpretation of medical monitoring claims as pre-payments for the harm caused,25 she concedes that this is only 22 Hardy, 2002.

23 228 A.2d 405.

24 668 N.E.2d 480,481.

25 The court in Ayers found that the development of the disease was a near certainty.

indicative of the recognition by the courts that risk harm is harm. The court in Ayers also explicitly declined to award damages for the exposure to the risk of the disease. It should also be noted that the value of medical monitoring cases such as Ayers are support for the view that risk harm is harm should be moderated by the fact their relative abundance only arises because such claims bypass civil procedure rules imposing restrictions on mass tort class action claims for damage. 26 Their relative abundance is therefore dependent on risk harm not being equivalent to outcome harm.

The market share approach to claims in Hymowitz v Eli Lilly & Co27 and Sindell v Abbott Laboratories28 concerned injuries that developed when the claimants were exposed in the womb to the drug Diethystilbestrol (DES), also lends support to the risk harm thesis. In both these cases, the courts used the market share of the drug companies at the time the mothers consumed the drug to apportion liability due to the difficulties of determining which producer was responsible for the drug consumed. Finkelstein notes that while the risk has already eventuated, by awarding damages based on market share, the court in essence awarded damages against the producers in accordance with the risk that the producers, via their supply of DES, imposed on the claimants.

This view is further reinforced in Hymowitz, as even those producers which could prove that they did not supply the drug were not exempted, which means that producers are liable for their share of the risk posed to the public by DES, rather than to the individual person. While the market share approach has been limited to cases where injury is already present, Finkelstein suggests that would be arbitrary to not extend the approach to cover cases where future harm may arise from the consumption of DES. However, this author would argue that an alternative view of the market share liability cases would be that it is a exception applied by the court to overcome the evidential difficulties inherent in proving causation in these circumstances, equivalent to Fairchild in UK jurisprudence. On this reading, Hymowitz plays the role of Sienkiewicz; a consequential but unfortunate extension of the original principle 26 27 28

Zipursky & Goldberg, 2002.

539 N.E.2d 1069.

607 P.2d 924,925.

that justice and precedent requires. There are similarities, such as their application in situations where causation is close to impossible to prove, where the risks has already eventuated, where there appears to be intent to limit the scope of the exception and where public policy requirements may militate from a deviation from traditional tort principles. Under such a view, the value of the market share approach in supporting the conception of risk harm as harm is limited.

IMPLICATIONS OF ACCEPTING RISK AS HARM Finkelstein’s theory is concerned with whether risk harms can be recognised as harms, and not with the issue of whether risk harms should attract liability in tort. The impact of her theory on tort law would therefore be somewhat limited.

However, it would be possible that a conception of risk harm as harm would encourage courts to impose liability for instances of risk harm. As such, it would be prudent to assess the impact of adopting risk harm as a cognizable form of harm.

Fear of a flood of potential cases is commonly cited as a reason for not imposing liability for risk harm.

The court in Ayers warned that “to permit recovery for possible risk of injury or sickness raises the spectre of potential claims arising out of tortuous conduct increasing in boundless proportion.” On the other hand, Lord Nicholls disagreed in his dissent in Gregg, stating that the floodgates “is not a convincing reason for letting injustice stand remedied” and is always raised when changes to the law are proposed. If court resources are limited and would be overwhelmed by a flood of new claims, this is an administrative problem should be solved with greater funding or by better case management, not by halting the development of the law. Doing so would return the state of the law to the fourteenth century, where the clerks of the court no longer issued new causes of action and the motto “no writ, no remedy” was supreme.29 Lord Nicholls also raised the issue of whether the knowledge that risk harm attracts liability would force more people to perform their duties 29

Hogue, 1966.

to over the standards to the level that economic inefficiency sets in. He expressed doubt over whether this will actually occur in the medical sphere. The issue of defensive medicine and the cost of healthcare is hotly debated. However, in the United States, where the common assumption is that doctors are presumed to practice defensive medicine due to the presence of trigger-happy tort lawyers, the percentage of costs arising from defensive medicine is smaller than commonly presumed.30 Furthermore, in the United Kingdom, the National Health Service has even less of an incentive to practise defensive medicine as they do not have the ability to charge costs of care to their patient’s insurance scheme, and have every incentive to walk the fine line between good and defensive medicine.

In Gregg, Lady Hale’s main concern with imposing liability for risk harms was that the corollary would mean a reduction in awards that would normally be made in full, but would now be adjusted to account for the precise fraction of risk that the defendant exposed the claimant to. For example, a doctor whose negligent act exposes a patient to a 60% chance of cancer will have to make full recompense, but under liability for risk harm, will only have to pay a proportionately lower sum. The “great majority of straightforward personal injury cases” will then require expert evidence, and the reduction in predictability will make it difficult for insurers, who handle the bulk of the claims, to settle. It could be argued in response that insurers will eventually adapt, as there are now industry standards for payouts in terms of traffic accidents, it is probably that the insurance industry will eventually catalogue a matrix of risk allocations to be used in settling claims. Alternatively, it could be argued that the conception of risk harm as an independent, and not a parasitic interest, would be in the form of medical monitoring expenses or compensation for anxiety, and only claim for the outcome harm if it eventuates.

30

Brody & Hermer, 2010.

CONCLUSION At a conceptual level, Finkelstein’s theory of risk as harm is capable of surviving the concerns raised by critics. However, support from case law is the exception rather than the norm, especially in the UK, and because risk harm must first be recognised by the courts or legislative bodies, accepting risk as harm will not significantly impact tort law. Court led change may occur in the United States, but the courts in the United Kingdom are unlikely to change their approach to risk harm, and legislative action will be required.

HOUSE RULES FOR THE INTERNET In November 2011, Minister for Information, Communications and the Arts Yaacob Ibrahim called for an online â&#x20AC;&#x2DC;code of conductâ&#x20AC;&#x2122;. This article discusses the feasibility of such a proposal, and the appropriate entity to undertake this task.

by Andre Cyrus Sim

University College of London

PREAMBLE In November 2011, Minister for Information, Communications and the Arts Yaacob Ibrahim called for an online ‘code of conduct’1. The suggestion was tabled as a response to an incident involving a blogger who allegedly published a racially offensive post on the Internet2. However, the suggestion met with wide opposition from netizens3 and prominent online personas. Based on the premise that there should be an online code of conduct in the first place, this article discusses the feasibility of such a proposal, and the appropriate entity to undertake this task. It then concludes with an analysis of how state-led regulation, if any at all, should be carried out, by using the Media Development Authority’s new licensing regime for news content as a case study.

SELF-CREATION AND SELFENFORCEMENT VERSUS LEGISLATION AND LEGALIZATION It will be argued that by and large, the online community should be given the autonomy to regulate the behaviour of its own members.

However, state involvement cannot be reasonably excluded in its entirety, and must be present insofar as is necessary to protect the public interest. That involvement however, should be limited to the role of moderator – one that leads, but does not decide the discussion. It is submitted that this emphasis on self-regulation with limited state involvement strikes the appropriate balance between the online community’s desire for self-determination, and the need to safeguard the public interest.

For an online code of conduct to be effective, it must actually be observed by members of the online community. This can be achieved in two ways – by consent, that is, a voluntary observance of online etiquette, or by enforcement, meaning a deterrent legal sanction compelling members to observe those rules. It is fairly easy to see why the second option is not much of an alternative at 1 J. Tan, Have code for online behaviour, says Dr Yaacob Ibrahim, The Straits Times, 27 Nov 2011 2 F. Sim, Blog editor under investigation for racist posting, Yahoo!

News SG, 23 Nov 2011 3 The term ‘netizen’ refers broadly to a person or entity actively involved in online communities

all – it would be administratively implausible for any entity to track the vast number of comments and articles posted online, while any penalty that is severe enough to be effective would risk public backlash. Indeed, a legalised code would merely create a formal veneer of graciousness – a veneer that exists only insofar as the sanction is present, and disappears as soon as it is removed. Such a legally imposed practice is unlikely to cure a culture of incivility, but would probably drive it underground instead where all sorts of negative social, racial and religious stereotypes would be able to fester, unchallenged by the usual debate that characterises a free community. In such a case, a state-led model of online regulation would merely serve to create a veil of legitimacy that fails to cure a culture of insensitivity but merely cajoles society to ignore it in a blissful but mistaken belief that such a code is achieving progress.

It therefore appears that instead of legislation and legalization, any online regulation should be mainly taken up by the online community itself. However, the online community as it stands appears to be too fragmented to be able to create a coherent code. While some regard the making of offensive remarks as abuse, others regard it as their right to freedom of expression; some revel in aggressive debate, while others prefer to stay completely silent. Indeed, given these wide disparities in their manner of online participation, it is not entirely clear how such a code would be formulated. Presumably it would fall to well-known bloggers and forum moderators to lead such an effort, but the worry is that the phenomenon of the ‘silence of the majority’ will severely undermine the representation of the online community, these invisible persons being stakeholders as much as high-profile online personalities. To leave the creation of the code entirely to netizens might therefore fail to achieve the kind of majority consensus that any effective communal code requires.

THE LIMITED, BUT NECESSARY, ROLE OF THE STATE Despite

the

objections

of

certain

online

segments4;5;6, it appears that there is an important role for the state to play in the conception of an online code. It is submitted that the development of such a code would be greatly facilitated by the involvement of the Media Development Authority, which can serve as a moderator for such discourse. As a government agency, the MDA has the resources to engage in large-scale public consultations needed to reach out to the vast and diverse groups of stakeholders, especially the more passive ones. The closed-door discussions held by the Institute of Policy Studies in 2012, for example, provide an excellent platform for netizens to speak frankly with each other7. Indeed, as an advocate of the public interest, the MDA has a strong incentive make use of those resources to facilitate the conclusion of a communal consensus.

At the same time however, this also necessarily means that the MDA must participate in the creative process. However, it should do so not as a regulator, but as a moderator – its purpose is to achieve consensus, rather than to impose compromise. It is submitted that this particular role is appropriate as a balance between two conflicting issues – the need for government agencies to safeguard the public interest, and the demand for self-determination by netizens.

It has already been established that leaving the creation of such a code entirely to netizens would probably achieve little progress. At the same time however, some, like prominent blogger Cherian George, have also asserted that “the slightest hint of official influence or control” would dissipate any support for such a code. While that is likely to be a valid assertion, it would nonetheless be highly unreasonable for netizens to entirely exclude the MDA from this process. Indeed, it is difficult to see how the MDA can be expected to lend its resources to facilitate community discourse while being barred from the whole process at the same time. The MDA has a legitimate interest to promote gracious online behavior as set out in its mission ‘to foster a cohesive and inclusive society...

4 B. Lay, Leave the Internet alone, New Nation, 27 Apr 2012 5 A. Loh, Give it a rest, Yaacob, andrewlohhp.wordpress.com, 27 Apr 2012 6 G. Cherian, A voluntary code of ethics for blogs, journalism.SG, 11 March 2012 7 L. Tan, Is there really a need for an Internet code of conduct?, The New Paper, Apr 29 2012

while promoting nation-building’8. That is not to say that the MDA should have the decisive say in what the code should entail, but as an advocate of the public interest and as a servant of the people, its involvement should not be constantly viewed with political suspicion. Granted that more efforts must be taken by the MDA and other government agencies to convey their sincerity in helping the online community achieve a common goal of graciousness and etiquette, the MDA has a fair place in the creative process of this code. Indeed, it might be in the interests of the online community’s own desire for self-determination that they collaborate with the MDA with an open mind.

Should the progress of the online community fail to sufficiently rein in a culture of offensiveness and more incidents like Donaldson Tan9 (where a blogger allegedly published a racist Facebook post) crop up, it would not be implausible that the state would simply lay an iron fist over the Internet. Of course it would hardly be able to control it, but that is besides the point that the relationship between netizens and the state must be one built on mutual trust and cooperation, and neither can reasonably exclude the other entirely from this process.

Furthermore, it is not as if the MDA, acting as moderator, would be able to dictate the code – at most, it will be able to set the direction and general objectives of our social discourse in order to ensure that the discourse advances the public interest in terms of maintaining a cohesive and inclusive online society. This is especially important when the decision-making process is controlled by various interest groups (including bloggers, readers, major news agencies and popular forums) whose actions may not always be consistent with the public interest. For example, it might not be entirely desirable for bloggers to adopt a policy that they are absolved of all responsibility for their own posts if they use a notice stating that readers who choose to view their site do so at their own discretion, and that they therefore cannot be blamed at all for any offense taken. As each interest group will typically bargain for their own vested interests, it falls to a moderator to keep the discussion within acceptable limits, so that these 8 Media Development Authority website at http://www.mda.gov. sg/AboutUs/Overview/Pages/VisionMissionValues.aspx 9 F. Sim, Blog editor under investigation for racist posting, Yahoo!

News SG, 23 Nov 2011

interests are able to find their place within the public interest. Therefore, while it will be up to the online community to define their own standards of conduct, it is only fair that the MDA be allowed to participate in the discourse by helping to set its direction and key public objectives as a moderator rather than as a regulator.

STATE REGULATION? A CASE STUDY ON THE NEW MDA REGULATIONS As recent as May 2013, the MDA introduced a new licensing regime for news websites, of which ten major ones have been identified10. Among others, the new regime requires a $50,000 performance bond from licensees and a commitment to remove objectionable content within 24 hours11.

As opposed to the model of mutual collaboration proposed above, the recent regulatory decisions have been more abrupt and one-sided than what is ideal. In fact, a government official has already indicated that any on-going consultation will pertain only to the ‘fine print’ and ‘there will likely be no substantive changes’12. The resulting adverse reaction of major news websites and netizen stakeholders alike raises several learning points that can be generalised to state regulation of general online content, assuming regulation should be state-led at all. As far as possible, the state should pre-empt and respond to major stakeholder concerns, and develop their policy justifications fully to withstand their sharp scrutiny.

First and foremost, whether the policy exclusively affects online news content or online content in general, it is imperative that the justification advanced to support any regulation pre-empts or responds to the major criticisms that are expected to be or have been levelled at it. While it is true that policies may nonetheless be pushed through where the benefits outweigh the costs, it is a far more convincing policy exercise if the MCI can alleviate the purported ‘costs’ that constituencies are worried about. On this particular episode, 10 The ten websites were identified as having met the MDA’s criteria of being visited by at least 50,000 unique addresses from Singapore each month and reporting an average of one article per week on Singapore’s news and current affairs over two months.

11 T. Wong, MDA rolls out licence scheme for news websites, The Straits Times, 28 May 2013 12 T. Wong, No major changes likely for online licensing rules, The Straits Times, 5 July 2013

the obvious concern was that the new regulations would undermine Internet freedom13. Peculiarly however, the main justificatory thrust in the MDA’s first announcement of the new regime was the need for parity in legal regulations14. While that is a valid objective, the need to achieve regulatory parity is not a direct answer to concerns that the constitutional right of citizens to freedom of speech might be affected – it is a rather separate benefit altogether, if it is one at all, and even if relevant, the argument was not developed fully to address why parity could not mean lighter regulation of traditional platforms instead.

In any event, it was the MDA’s side-assurances that it would be ‘judicious’ with regulation15 that were relevant to our civil rights. However, having been put forth only after the fact and being non-legal in nature, these assurances were unsurprisingly regarded as unconvincing. In some cases, the MDA’s main justification has even been described by netizens as an ‘absurd pretence’16.

The lesson learnt here is simply that any regulation requires frank and open debate, not just among constituents, but between state and citizen too.

This is particularly so in the online realm where the community is large, the participants educated and the discourse dynamic – little will be able to escape their notice. Ignoring the metaphorical elephant in the room will only serve to erode mutual trust and deepen suspicion, as some commentators have already recognised17. Instead, in the spirit of mutual collaboration, the state should take the initiative to bring up and address such major concerns upfront in order to gain the trust of stakeholders. Even if it eventually fails to convince them, such trust will still go a long way toward finding a new compromise, or plausibly encourage some unconvinced constituencies to cooperate.

That said, it may also be added that any 13 K. Han, Singapore: Internet freedom under threat, Al Jazeera, 3 June 2013 14 Media Development Authority website at “www.mda.gov.sg”, Fact Sheet - Online news sites to be placed on a more consistent licensing framework as traditional news platforms, 28 May 2013 15 J. Hooi, Minister: MDA will be ‘judicious’ with Internet regulation, The Business Times, 5 June 2013 16 Wong, MDA’s absurd pretence of parity, andyxianwong. wordpress.com, 2 June 2013 17 A. Loh, New MDA licensing rules: Finding a way forward, Yahoo! News SG, 17 June 2013

policy justification, particularly for a policy as controversial as this, needs to be developed fully and thoroughly. It was certainly not ideal that the ‘parity’ argument stopped at just that – regulatory parity. It failed to properly justify why the new laws were necessary even though there were already other laws in place regulating news websites, such as the Broadcasting (Class Licence) Notification and Internet Code of Practice and Internet Code of Practice. While it is true that there was no formal consistency with traditional media platforms, it is not immediately obvious why paper consistency should be decisive if the ‘light touch’ is already present in substance with existing legislation. Indeed, labelling the new regulations as ‘light touch’ is hardly instructive of their substantive effect. The need to fully develop policy justifications is especially pronounced here because online regulation is not as ‘natural’ a progression from traditional media regulation as the some may choose to believe. There are objective differences that justify differentiation online media is run by a much more diverse range of entities (from bloggers to start-up businesses), covers much more diverse content and invites vastly more individual participation. Given the different actors, interest groups and much greater potential impact of the broadly phrased regulations, it soon becomes clear that uniformity in legal regulations cannot be taken for granted.

In any event, even if the new regulations are merely a refinement of government policy rather than a ‘fundamental shift’18, that is a question for the stakeholders to decide, rather than the state.

Where both parties disagree for whatever reason, repeatedly asserting the same position is hardly helpful, and this brings us back to the need for the state to develop arguments to their logical conclusion before views can be reconciled or any legitimate differences in policy judgments can be made.

MOVING FORWARD Since the Minister for Information, Communications and the Arts Yaacob Ibrahim made a public call for an online code of conduct 18 J. Hooi, Minister: MDA will be ‘judicious’ with Internet regulation, The Business Times, 5 June 2013

in 2012, the debate over online regulation has been a hot topic. The on-going developments over the MDA’s new licensing regime clearly highlights the need for any state-led regulation to be justified by fully-developed arguments that respond to the major concerns of netizens, rather than having government agencies repeatedly asserting the potential benefits in a separate issue-area.

Yet, many have also rightly questioned whether there is even a need for such regulation or codes of conduct in the first place. There already exists an informal system of peer review among netizens that keep most offensive or insensitive remarks in check, and for the more unbecoming of remarks, the Sedition Act and Maintenance of Religious Harmony Act already addresses those serious enough to pose a risk to our racial and religious harmony and national well-being. At the end of the day, it seems most appropriate that any code should be self-created. Graciousness holds the most social value not when one is instructed by another on how to act or when one is threatened by legal sanction – rather, it is worth most when it is made as a choice, one made out of mutual respect for other Singaporeans. Once this is understood, it becomes clear that it must fall to the initiative of our own civil society to take that gracious step forward.

THE IMPERFECT SAVIOUR This article comments on the decision to set up a third law school in Singapore.

by Kyle Koh

University College London

digitaltred.com

“Why can’t the incumbent law schools provide a solution?”

The Committee on the Supply of Lawyers convenes periodically to review the supply of legal professionals in Singapore. Work by past committees includes a proposal that culminated in the founding of SMU Law School in 2007. In May this year, the 4th Committee on the Supply of Lawyers,1 chaired by Justice VK Rajah, reported that Singapore has a lack of lawyers and analysed this shortage into two categories: corporatecommercial law and community law2.

The deficit of corporate-commercial law practitioners is relatively minor and according to the committee, the projected demand of such lawyers can be met by increasing the intake of SMU students from 120 to 180 students.3 Looking at community law, however, the committee arrived at a dismal set of statistics, which revealed a dire need for more of such practitioners in Singapore.

This led the committee to recommend the creation of a third law school, focusing on training prospective community lawyers. This proposal has been adopted by the government,4 amid both approval and criticism in the Straits Times Forum.

1 4th Committee on the Supply of Lawyers, Report (May 2013) [“4th Committee”] <http://www.mlaw.gov.sg/content/dam/minlaw/corp/ News/4th%20Committee%20Report.pdf> accessed 10 Jul 2013 2 Criminal law and Family law 3 4th Committee 7 4 Jalelah Abu Baker, ‘Third law school focused on lawyers interested in community law’ (Straits Times, 28 May 2013) <http://www.straitstimes.com/breaking-news/singapore/story/third-law-school-focused-lawyers-interested-community-law-20130528> accessed 12 Jul 2013

The committee found that the existing sources of law graduates are collectively unable to furnish Singapore with an adequate supply of community law practitioners. One reason is structural: NUS Law is operating at optimum capacity with its present intake of 240 students per year and SMU Law will be unable to increase its annual intake beyond 180 students without compromising the quality of the education it delivers.5 However, the chief reason is societal: to put the committee’s findings bluntly, Singapore’s top students simply have no interest in practising community law.6 The stark truth is that most graduates are, understandably, lured towards the more lucrative field of corporate-commercial work.

Given Singapore’s reputation as a regional legal hub and that the number of lawyers coming to market is rising steadily, it would be a tragic state of affairs if the man in the street found himself without adequate representation. The new law school will address this concern head on. Armed with the mandate of bolstering the number of community law practitioners, its curriculum will focus on community law and when admitting its annual intake of 75 students,7 it will favour candidates with a genuine interest in practising community law. In fact, the committee speculated that that working adults such as paralegals, social workers and law enforcement officers will comprise the bulk of the admissions to the third law school.8

5 6 7 8

4th Committee 11 4th Committee 12 4th Committee 15 4th Committee 12

ANALYSIS On a pragmatic level, the plan for a third law school appears effective. The new law school will directly increase the supply of community law practitioners and thereby achieve its immediate purpose. Critically, the committee was adamant that the quality of graduates must satisfy a minimum standard. Graduates will still need to meet the minimum admission requirements to the Singapore Bar that already apply to NUS Law and SMU Law graduates and core subjects such as land law will remain compulsory even if they are not employed in a community law context.

Furthermore, the unconventional emphasis on mature students is a salutary development to a profession that thrives on the diversity of its members’ perspectives. From a wider point of view, creating an alternative avenue to becoming a lawyer fosters a greater sense of vocational opportunity in society.

That said, a new law school dedicated to community law may in some ways be deleterious to access to justice as well as to the legal profession as a whole. As things now stand, Singaporean law graduates generally do not seek to practise community law. Notwithstanding their satisfaction of the Bar requirements, if the community lawyers produced by the new law school predominantly comprise mature students with sub-par academic credentials, the unfortunate truth is that they will reinforce the notion that community law is not something for good students to aspire to. This would engender at least two major problems.

Firstly, the stigma that might arise would discourage legal aspirants from engaging in community law, thereby stagnating or even undermining the development of a healthy body of community law practitioners. Even if their numbers were to rise, the quality of talent would diminish. It is the man in the street who will suffer if graduates from the new law school lack the competence to stand toe-to-toe against our highly-qualified prosecutors. Adapting the words of Chief Justice Sundaresh Menon to this context, it is cold comfort to those who seek justice to say that they have a legal representative if their lawyer is an inferior specimen.

Secondly, the legal profession might be transformed into a two-tier occupation, wherein graduates from NUS Law, SMU Law and Overseas Scheduled Universities (OSUs) operate in the upper, corporate-commercial spectrum and those who emerge from the third law school are ‘condemned’ to the practice of community law.

Indeed, the committee expects that the third law school will not compete with NUS Law and SMU Law in producing corporate-commercial lawyers.9 Moreover, the absoluteness of the third law school’s mission to nurture community lawyers may create the risk that graduates from the incumbent law schools will regard community law to be niche, if not remote, thereby eschewing it completely.10 In my opinion, the committee was too quick to resign itself to the idea that graduates of the existing law schools will not deign to practise community law. NUS Law Associate Professor Burton Ong has argued that the responsibility of cultivating a proficient body of community lawyers must be shared across all of Singapore’s law schools.11 This is correct. It is fair for the academic elite to seek desirable levels of remuneration for their talents, but to encourage the outsourcing of social responsibilities to another institution exposes a certain poverty of spirit.

The existing law schools have not stood idly by, but much more can be done. SMU Law is home to an active pro bono society and The Law Clinic,12 worth 4 credits out of the 40 required annually, is an elective module at NUS Law. However, none of these form part of the core curricula.

9 Subbaraman Ramesh, ‘Proposal for third law school with focus on community law practice’ (Channel News Asia, 28 May 2013) <http://www.channelnewsasia.com/news/singapore/proposal-for-thirdlaw/690042.html> accessed 09 Jul 2013 10 Teh Joo Lin, ‘Focus on community law may backfire: Forum’ (Straits Times, 26 Jun 2013) <http://www.singaporelawwatch.sg/slw/headlinesnews/26839-focus-on-community-law-may-backfire-forum.html> accessed 08 Jul 2013 11 Burton Ong, ‘Third law school: Problems to consider’ (Straits Times, 4 Jun 2013) <http://law.nus.edu.sg/about_us/news/2013/ST040613. pdf> accessed 08 Jul 2013 12 NUS Law, ‘The Law Clinic’ (NUS Law, 5 Jun 2013) < <http://law.nus.edu.sg/student_matters/course_listing/courses_desc.asp?MC=LL4094&Sem=1&MGC=2> accessed 24 Jul 2013

Furthermore, the compulsory Pro Bono Service module at NUS Law is worth 0 credits, providing students with no incentive to engage in community law other than perfunctorily. Perhaps SMU and NUS should make a course in the vein of The Law Clinic mandatory.

Altruism cannot be foisted upon students, but obligatory participation can widen blinkered eyes.

Realistically, the prospect of undertaking real case work would be a relief to those who are tired of the classroom walls and to those who prefer an alternative mode of assessment. Even if a legal clinic is not made compulsory, it should be worth more credits to better reflect the importance of community law and pro bono work in Singapore.

For example, at University College London (UCL), Access to Justice and Community Engagement is a popular elective module that furnishes students with the opportunity to work with leading nongovernmental organizations in the UK in the fields of criminal justice and human rights. It is worth a quarter of the yearâ&#x20AC;&#x2122;s required credits.

I would add that the importance of community law and the injustice of having no legal representation should also be taught to the multitude of Singaporean law graduates from OSUs. This can be achieved through events organised by the relevant overseas Singapore law networks.

Singaporeans who pursue an education overseas should be reminded that when they return home, they have a duty to serve the community and not just themselves.

We cannot expect our supply of community lawyers to stem from a source that stands apart from our existing institutions. Additionally, there is nothing to stop students from the proposed third law school from choosing to practise corporatecommercial work upon graduation. If Singapore has a shortage of community lawyers, changes to our present law schools, and education of our overseas graduates, will provide the best longterm solution.

REVISIONS TO THE MANDATORY DEATH PENALTY This article considers the recent revisions made to the death penalty in Singapore. It further argues that the death penalty is fundamentally problematic and is in favour of a complete abolition.

by Phang Cun Kuang University of Bristol

This article begins with a summary of the recent revisions made to the death penalty in Singapore.

Notably, instances where the mandatory death penalty apply have been reduced.

The article further argues that the death penalty is fundamentally problematic and that a complete abolition would be justified. In seeking to justify this position, it will draw comparisons with other countriesâ&#x20AC;&#x2122; views on capital punishment, acknowledging the growing global consensus that the death penalty is immoral and unfair.

SUMMARY OF THE RECENT CHANGES The revisions to the mandatory death penalty were announced last year and the changes were set out in the Penal Code (Amendment) Bill and the Misuse of Drugs (Amendment) Bill.

Prior to the amendments, the offence of murder

could be committed with four mental states: (1) the intention to kill; (2) the intention to cause injury with the knowledge that such injury is likely to cause death; (3) the intention to cause injury that is objectively sufficient to cause death; and (4) the knowledge that the said act is so imminently dangerous that it is virtually certain to cause death.1 The mandatory death penalty was applicable to murders committed with any of the above mental states.

With the revisions, only murders falling within s300(a) (that is, with the intention to kill) are subject to the mandatory death penalty. Other forms of murder (subsection (b) to (d)) remain punishable by death or life imprisonment at the discretion of the courts.

In the case of drug trafficking, a clause has been added which lays out the conditions by which the 1 See section 300(a) to section 300(d) of the Penal Code for more clarity.

accused may be sentenced to life imprisonment instead of being sentenced to death. Previously, when found guilty of trafficking more than the amount stated in the Second Schedule of the Act, for example more than 15 grammes of diamorphine, the accused will have to be sentenced to death.

Law Minister K Shanmugam explains that “mandatory sentences are and should be the exception.”2 Mandatory sentences mean that the judges are bound by statute to impose the prescribed sentence if the accused is found guilty.

For example, previously, if the accused were to be found guilty of trafficking above 15 grammes of diamorphine, the judge will have to sentence him to death. The Law Minister also mentioned that the homicide rate in Singapore is considerably low with only 0.3 cases per 100,000 people; Parliament should therefore allow greater judicial discretion where suitable.3 Deputy Prime Minister (DPM) Teo explains that drug traffickers tend to be mules coerced by drug kingpins and the amendment is aimed at a lighter sentence for the drug couriers who are likely to be uninvolved with the drug syndicates.

The amendment is also made such that the death penalty will still be imposed if someone who has greater involvement in the syndicates is caught.4 Amnesty International welcomes this change as mandatory punishments have the tendency to be unfair and unjust. Now that judges have a degree of discretion in sentencing, all extenuating factors of each case can be fully considered before deciding on the appropriate sentence.5 This should allow judges to avoid imposing the death penalty on cases with sufficient mitigating factors.

PROBLEMS WITH THE DEATH PENALTY 1) Judicial discretion might cause inconsistencies

2 para 14 of the Second Reading Speech by Minister for Law on the Penal Code (Amendment) Bill dated 14 November 2012.

3 ibid, para 12 and 13.

4 para 9, 23 and 32 of the Second Reading Speech by DPM Teo on the Misuse of Drugs (Amendment) Bill dated 14 November 2012.

5 See: https://www.amnesty.org.uk/news_details.asp?NewsID=20218

With the revisions, judges have increased discretion in imposing the death penalty and this can be seen as a positive development. Firstly, it upholds the doctrine of separation of powers. It is more constitutionally acceptable that judges, not Parliament, decide on the appropriate sentence.

As mentioned by Michael Hor, it is for the courts to find guilt and pronounce sentence on those deemed guilty.

However, greater discretion also means the possibility of greater inconsistency.

Each judge may have different philosophical and personal reasons in their approach to sentencing.6 Each individual judge may give different weight to the various mitigating factor than another which may lead to the result of the death penalty imposed for one case and not for another similar situation.7 Inconsistent outcomes regarding the death penalty are simply unacceptable as it involves taking away a man’s life.

The irreversible nature of the death penalty means that it might be seen as unjust if there are any inconsistencies in the judges’ sentencing. Chief Justice Chan Sek Keong emphasised in the case of Public Prosecutor v UI that: “A high level of consistency in sentencing is desirable as the presence of consistency reflects well on the fairness of a legal system. In contrast, the presence of inconsistency in sentencing diminishes the idea of justice being equal to all in a legal system; it also leads to public cynicism about the legal system in question and eventually, to the loss of public confidence in the administration of justice.”8 To reduce inconsistencies, the obvious answer is to have guidelines for the purposes of sentencing, as mentioned by Michael Hor in his article from 2004.9 The Law Minister did exactly this and gave an example of a possible guideline when announcing the changes to the death penalty in July 2012. However, Michael Hor argues that a set of guidelines might erode discretion and 6 Chandra Mohan and Priscilla Chia, “The death penalty and the desirability of judicial discretion” (2013) Law Gazette.

7 Hor, (n 6), pg 112.

8 [2008] 4 SLR (R) 500 at [15]. See also (n 8).

9 Hor, (n 6), pg 111.

cause arbitrariness instead. It might also lead to the legislature broadening offences to impose the discretionary death penalty for more crimes on the reasoning that judicial discretion will serve to identify the cases that truly qualify for the death penalty.10 The balance between discretion and consistency is difficult, but not impossible to achieve. A form of guided discretion, such as that practiced in the United States, may be ideal. For example, the Model Penal Code suggests several conditions to be fulfilled before the death penalty can be imposed, such as the finding of aggravating circumstances established by evidence at trial and the absence of mitigating factors. In states such as Oregon and Texas, there must be a finding relating to the accused’s future dangerousness as a related factor.11 Taking a step back, one must remember that we should also have faith in the members of our judiciary.

Former Attorney-General Walter Woon noted that our judges know where their duty lies.12 Finding the right balance is an extremely difficult task. Indeed, the United States has still been attempting for years to find the right balance to this problem.13 Perhaps this is merely the first step in the journey to a complete abolition of the death penalty. It has been astutely observed by French jurist Marc Ancel that the abolition of the death penalty had usually been achieved over a long period of time, through a gradual “testing of the waters” leading to first a de facto abolition and then a complete abolition.14 Nevertheless, in the mean time, we will continue to contend with the challenge of consistent sentencing.

2) The deterrent effect of the death penalty is extremely limited The mandatory death penalty has always been cited as one of the primary reasons for the low crime 10 ibid.

11 Roger Hood and Carolyn Hoyle, “The death penalty – A worldwide perspective” (2008) Oxford University Press, pg 288.

12 See: interview of Walter Woon, “Giving judges discretion not a bad thing” (2012) 14 July, The Straits Times.

13 Hor, (n 6), pg 112 14 M. Ancel, The Death Penalty in European Countries (1962), pg 3.

rates in Singapore.15 Public opinion also supports the mandatory death penalty as an effective deterrence to severe crimes such as murder.16 However, statistics in the United States show that the murder rate in the states with the death penalty has consistently been higher than in states without the death penalty. For example, in 2011, states with the death penalty had 4.89 murders per 100,000 people whereas states that have abolished the death penalty only had 4.13 murders per 100,000 people.17 This is a 13% difference and the figures suggest having the death penalty does not deter people from committing murder. Former Attorney-General Walter Woon has also noted that the death penalty only deters premeditated murders.18 On the other hand, the UK has abolished the death penalty since 1965. There is also an absolute ban on the death penalty, as enshrined in the Charter of Fundamental Rights of the European Union and the European Convention of Human Rights of the Council of Europe.

However, the House of Commons noted that homicide rates have been increasing since the abolition of the death penalty in the UK.19 There have been calls to reintroduce the death penalty again in the UK in recent years. However, public opinion polls may be of limited use. There has been evidence from European countries that suggests that once the abolition of the death penalty has become “embedded in the national consciousness”, support for the penalty usually wanes, regardless of any increase in the homicide rate. For example the majority of the German electorate supported capital punishment prior to abolition in 1949, but support for a reintroduction fell to only 24% by 1992.20

15 For example, see the government’s response to Amnesty International’s Report: http://www.mha.gov.sg/basic_content.aspx?pageid=74.

Also, evidence of low crime rates have regularly been cited as an effect of the mandatory death penalty. For example in the Second Reading of the Penal Code (Amendment) Bill.

16 Terence Ng, “The death penalty – a perspective from Singapore” (2004) National University of Singapore, Master of Social Sciences Thesis.

17 See: www.deathpenaltyinfo.org 18 Woon, (n 14).

19 House of Commons note, “Homicide rate and the death penalty” (2005) 20 Hood, (n 13), pg 376.

Evidently, there is no clear conclusion that the death penalty deters murder. Michael Hor also suggested that years of studies on this area have not led to a clear outcome on whether the death penalty does deter or not.21 Similarly, the effectiveness of deterrence in relation to drug offences is debatable. At the outset, the fact that drug offences are relatively low in Singapore compared to other countries does suggest that the mandatory death penalty has been an effective deterrent.

On the other hand, the mandatory death penalty can never truly eradicate drug offences. However, that is not to say that having a death penalty is meaningless. As former Attorney-General Walter Woo explained, even a discretionary death penalty forces any courier to calculate whether it is worth the risk to carry drugs into Singapore.22 However, this deterrence does not and will not eradicate drug offences in Singapore.23 Furthermore, Michael Hor makes a convincing argument that if the purpose of the death penalty is maximum deterrence, just as the Singapore government describes it to be, then changing it to a discretionary penalty would serve only to dilute the expected deterrence.24 This suggests that the government perhaps acknowledges that deterrence is not as strong an argument as people think to retain the death penalty.

This author believes that the US Supreme Court in Coker v Georgia was right, the death penalty is “nothing more than the purposeless and needless imposition of pain and suffering” if it does not control crime.25 Even if it were proven beyond doubt that the death penalty (and in particular, the mandatory death penalty) helped control crime, the spectre of human rights suggests that it is an unfair and degrading punishment. In the ASEAN Human Rights Declaration, it was declared that “No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”

Hopefully, the Singapore government will consider 21 Hor, (n 6), pg 109.

22 Woon, (n 14) 23 See Wong Meng Meng’s message titled “Understanding the death penalty” at: http://www.lawgazette.com.sg/2012-08/490.htm 24 Hor, (n 6), pg 110.

25 Hood, (n 13), pg 318.

a complete abolition of the death penalty.

3) The death penalty extends beyond retribution to revenge The death penalty has traditionally been imposed against persons who commit heinous crimes, commonly murder. It is an eye-for-an-eye conception of justice that takes a life for a life taken.

Capital punishment was traditionally employed mainly for the display of power, a way to remind everyone of what the state could do to criminals.26 For example, there were about 223 capital offences in England in 1810.27 This shows that capital punishment started off as an unconvincing and barbaric reason to take someone’s life. How can the killing of another person right the wrong of the murder of the first person?

There is the utilitarian argument that it is acceptable to deprive the life of a dangerous individual for the happiness of the greater majority. Utilitarianism advocates that the morality of an action is determined by the consequences it brings. In essence, it means “the greatest happiness of the greatest number is the measure of right and wrong”28 For example, the execution of a mass murderer will lead to the greater sense of security for society and therefore condoned under this theory.

However, one must consider that the state’s decisions have a long-term impact on the consciousness of society. Sir Ernest Gowers argued that “the moral consciousness of society would be even more powerfully affected by the State’s setting the example of not taking life.”29 This is similar to the brutalisation theory mentioned by Roger Hood. This theory implies that when the state imposes the death penalty, it “stimulates, rather than inhibits, violence and specifically condones killing as vengeance.”30 Therefore, state executions subconsciously encourage more homicides and if the state chooses to not execute criminals, it might 26 S. Banner, The Death Penalty: An American History (2002), pg 14.

27 Hood, (n 13), pg 9.

28 Jacob Viner, “Bentham and J. S. Mill: The Utilitarian Background” (1949), The American Economic Review Vol. 39 No.2, pg 360-382 at pg 365.

29 Ng, (n 18). See also Sir Ernest Gowers, “A life for a life? The problem of capital punishment” (1956) London: Chatto and Windus.

30 Hood, (n 13), pg 322.

actually be setting an example of respecting human life and it may increase the moral consciousness of society.

The death penalty itself is an ancient punishment that has outlived its relevance and can be seen to be excessive. As Senior Counsel Wong Meng Meng aptly said, ““Sometimes I wonder if the death penalty is imposed because we have still not overcome our innate tribal instincts, despite our education.” Even if the death penalty demonstrates benefits such as deterrence (which seems dubious at best), such appears to be overshadowed by the dimension of human rights and morality. This author believes that the right to life trumps the ‘right’, if any, to inflict the death penalty. Indeed, the retention of the death penalty seems to be one based on values of vengenance, that seem far too out-dated and irrelevant now.

OBSERVATIONS OF GLOBAL RESPONSES TO THE DEATH PENALTY Many countries in the world have made the decision to abolish the death penalty, with some still dormantly retaining it for over 10 years.31 The roots of the abolitionist movement can be attributed to the emerging liberal and humanistic ideas originating from Europe at the end of the eighteenth century.32 The reasons for abolishing the death penalty now can partly be attributed to the increased importance of human rights and mostly due to the immorality of the death penalty as a degrading and irreversible punishment, deriving from the original reason mentioned above.

However, there are countries continue to retain the death penalty, including countries in Asia, Middle East and certain states in the United States.

It has been pointed out that the reason why so few countries in Asia have abolished the death penalty is due to a “temporal lag” in Asian societies.33 This suggests that Asia is about two decades behind places of parallel economic and political development such as Central and Eastern Europe.

It implies that Asian culture is slow to adapt to 31 55 countries abolished the death penalty from 1989 to 2007.

See Hood, (n 13), pg 13.

32 Hood, (n 13), pg 40.

33 David Johnson and Franklin Zimring, “Taking Capital Punishment Seriously” Asian Criminology 1, 2006, pg 89-95 at 93.

the liberal ideals espoused by their European counterparts. Another similar reason is that Asian societies have a different conception of “right to life”.34 This suggests that in Asia, the right to life of potential victims is more important than the right to life of persons who have deprived someone of their life. This justification is, however, restricted only to certain offences. Similar to the previous argument, this strongly suggests that Asian societies have culturally different beliefs and traditions, which can be observed to be a very possible justification for this distinction. A quick reflection on our present society shows that western and eastern parts of the world traditionally have contrasting cultures, and that in modern times, there has been a “westernisation” of the rest of the world.

For a more specific illustration, the Law Commission of India mentioned in a report in 1967 that “having regard to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of the abolition of capital punishment.”35 Although this statement is fairly dated, there is still much truth in it. What this suggests is that every country has its own unique circumstances that leads to the government having to make its own decision without any external pressure from another country as the circumstances in the other country could be completely different. As the abolition of the death penalty is a significant change to the laws of the country, it is not a decision to be made without serious consideration of the consequences. This is similar to the argument Singapore put forth in the 1994 United Nations General Assembly, where it was argued that the proposed resolution calling for a moratorium of death sentence “went some way towards dictating a particular set of values from countries which have abolished capital punishment on those which have not.”

This, coupled with the dated statement by the Law Commission of India, serves as a very important reminder that the abolitionist countries should not be attempt to be to hasty in achieving global 34 Hood, (n 13), pg 102.

35 Report of 1967 by the Law Commission of India, The Mode of Executions of Death Sentences, mentioned in Hood, (n 13), pg 93.

abolition of the death penalty.

In the United States, eighteen of its jurisdictions do not practice capital punishment. The initial movement towards abolition began in the Supreme Court decision in Furman v Georgia in 1972, where it was ruled that all death penalty statutes in force at that time were unconstitutional in the sense that the death penalty was being applied in a discriminatory and arbitrary manner.

The states then redrafted their statutes to fit this ruling instead of completely abolishing the death penalty. After Furman, there were periods where state executions were widely practiced and also periods where there was a moratorium. However, the main problem became clear in the 21st century, where there was widespread concern that innocent people were being wrongfully executed. It was argued that the death penalty deprives innocent people the opportunity to prove their innocence, and thus violates procedural due process.36 Furthermore, the Illinois Commission reported in 2002 that it believed that “no system could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.”37 However, it was later observed by David Garland that the United States still retains the death penalty because of its characteristics of federalism and popular democracy.38 He argued that there is no political mechanism that exists in the United States that allows a nation-wide abolition of the death penalty. In other words, the United States has not completely abolished the death penalty due to its own cultural characteristics unique to itself. This adds on to the previous point and further reiterates that every country has its own reasons for retaining the death penalty.

It can therefore be observed that the primary reason regarding whether or not a country agrees to the abolishment of the death penalty hinges on characteristics and circumstances unique to itself.

European countries embrace abolishment more readily as the reasons to do so (human rights and morals) are more relevant and related to their own constitutional priorities. In the case of Singapore, 36 Hood, (n 13), pg 119 37 ibid, pg 120.

38 D. Garland, “Capital Punishment and American culture: some critical reflections” Punishment and Society 7 (2005), pg 347-376 at 347.

our society is rooted in conservative values, similar to the “right to life” argument mentioned above.

Moreover, from the comparatively short existence from our independence in 1965, the presence of the death penalty has to some extent contributed to the nation’s low crime rate.

DISCRETIONARY INSTEAD OF MANDATORY Discretion was introduced to prevent the possible execution of mere drug mules and unintentional murderers, and it can perhaps be said that this is an incremental step taken by the Legislature to “test” if Singapore is ready for a complete abolition of the death penalty.

The recent case of Public Prosecutor v Abdul Haleem bin Abdul Karim and another39 is a good example that illustrates the effects of this change.

In this case, Abdul Haleem was clearly just a courier whereas Ridzuan had more involvement in the drug trafficking. Abdul Haleem was therefore spared the gallows as the AttorneyGeneral tendered a certificate under s33B that he had “substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore”. Under the previous provisions, Abdul Haleem would still have to face the mandatory death penalty.

Contrast this with the case of Yong Vui Kong v Public Prosecutor and another matter40 that was decided before the revisions to the death penalty.

In this case, the accused was found guilty of trafficking 47.27 grammes of diamorphine and was sentenced to death. There was evidence in that case of the cooperation and remorse of the accused, which would have qualified him for a consideration under s33B of the new provisions mentioned above. However, the revisions to the death penalty affects all the cases where the accused was on death row and Vui Kong’s case is currently pending review, where he is likely to be re-sentenced to life imprisonment instead.

39 40

[2013] SGHC 110 [2010] SGCA 20

CONCLUSION It is heartening to see that Singapore acknowledges that a mandatory death penalty has significant problems.

Furthermore, given that the moral consciousness of society is to some extent shaped by the state’s views on punishment, surely the notional ideas of having a compassionate and gracious society are enhanced by the government taking such steps to increase judicial discretion in sentencing.

Moreover, Singapore has become a party to the ASEAN Human Rights Declaration, which seeks to reaffirm “commitment to the Universal Declaration of Human Rights, the Charter of the United Nations, the Vienna Declaration and Programme of Action, and other international human rights instruments to which ASEAN Member States are parties”. Perhaps there remains hope that Singapore intends to seriously consider the possible future of a complete abolishment of the death penalty.

LEMON LAWS IN SINGAPORE: AN ASSESSMENT This essay seeks to evaluate the effectiveness of the recent addition of lemon laws to domestic legislation and assess the strength of consumer protection laws in the nation as compared to other jurisdictions such as the UK and US, which have robust consumer protection policies.

by Shenn Tan

University of Bristol

INTRODUCTION The Consumer Protection Fair Trading Act (CPFTA) was enacted in 2004 after years of lobbying by the Consumers Association of Singapore (CASE) in its endeavour to create a fair trading environment for both consumers and retailers in the nation1. Consumers now have unprecedented rights under legislation to seek civil remedies from businesses committing unfair trade practices. In addition, recent amendments made to the CPFTA, Hire Purchase Act (HPA) and Road Traffic Act (RTA) have broadened the scope of consumer protection laws to bring Singapore’s fair trading environment in line with its commonwealth counterparts2. A legal obligation is imposed upon retailers to provide consumers with more avenues of recourse for defective goods (colloquially known as ‘lemons’).

Such additions are aimed at inculcating higher standards of retail practice in Singapore and boosting overall consumer confidence. It is hoped that this will produce greater fairness and equity in sale-of-goods transactions. While this is seen as a huge milestone for Singapore’s fair trade climate, its effectiveness in strengthening consumer protection depends on whether the legislation is sufficiently versatile to cover the wide range of goods currently listed under it. This essay thus seeks to evaluate the effectiveness of the recent addition of lemon laws to domestic legislation and assess the strength of consumer protection laws in the nation as compared to other countries that have robust consumer protection policies such as the United Kingdom (UK) and the United States of America (US).

LEMON LAW PROVISIONS Under pre-existing legislation, there is little redress for consumers who seek non-monetary compensation. This is particularly so for goods without warranties – all that is currently available are refunds for latent defects in sale-of-good transactions3. Moreover, the lack of clarity and 1 ‘CPFTA and Lemon Law’ (Consumers Association of Singapore) <http://www.case.org.sg/cpfta.html> accessed 14 June 2013 2 ibid 3 ‘Parliament passes Consumer Protection (Fair Trading) Bill 2012: Lemon law expected t be in force on 1 September 2012’ (2012) Allen & Gledhill Legal Bulletin 24(3)

certainty in the old law further complicated matters for owners of defective goods; they were only entitled to a refund if it was acted upon within a ‘reasonable’ period of time. This was not defined and in many cases, consumers are ultimately left with no form of redress. Thus, lemon law provisions brought into effect in September 2012 gave consumer protection laws new vigour by introducing a two-stage framework to instill stronger fair trading practices in Singapore and mediate gaps prevalent in pre-existing legislation.

Any defect occurring within six months of ownership is taken as present at the point-of-sale and retailers are obliged to provide repairs or replacements for the defective good4. If it is still malfunctioning after being repaired or replaced (subject to a ‘reasonable’ amount of time for this to take place), consumers will then be entitled to more avenues of recourse such as a reduction in prices or rescission under the new legislation5.

EFFECTIVENESS IN STRENGTHENING CONSUMER PROTECTION The lemon laws provide relief that is legally enforceable by the courts, a practice that was unprecedented in Singapore. Retailers were able to make repeated promises of repairs to their clients without any intention of acting upon them or providing alternative forms of compensation.

As such, the new amendments balance out a transactional relationship long tipped in favour of retailers. It also makes retailers increasingly aware of the need to inspect their goods to protect themselves from future claims or the possibility of having to give refunds or replacements to a large number of customers. Businesses are actively taking note of the good’s origins and ensuring that they are of satisfactory quality and fit-forpurpose before putting them on sale, reflecting a positive shift away from bad fair trade practices adopted by many retailers who previously found it acceptable to sell shoddy goods to customers for good money6.

4 ‘”Lemon Law” Introduced In Parliament To Protect Consumers’ (2012) Rajah & Tan LLP Client Update February 2012 5 S.Y. Chan and G. Ong, ‘Lemon law to boom or doom businesses’ Business Times (Singapore, 3 August 2012) 6 ‘Lemon law could be a win-win’ Business Times (Singapore, 16 October 2012)

Moreover, nationwide efforts made to educate more businesses on lemon law provisions have led to stricter product-sourcing practices and more stringent pre-sale checks of items by front-line staff7. Coupled with the media’s diligent efforts in raising consumer awareness of the amendments, it has translated into an almost 75 per cent reduction in customer complaints over defective goods within a month of implementation8. Undoubtedly, the lemon laws have proven effective in providing stronger consumer protection rights for buyers.

However, what is particularly significant about the amendments is that they have also set in motion a movement towards higher and more equitable fair trading standards among businesses in Singapore, particularly in high cost industries. Such a consequence reduces the risk of citizens entering into bad sale-of-goods transactions by weeding out unscrupulous operators in the industry9.

However, while the new law has produced the aforementioned benefits, it is too early to tell whether such advantages will be subsumed by potential drawbacks highlighted by academics. For one, greater costs will most likely be imposed upon consumer goods as a result of meeting the higher quality expected of products. Businesses may set higher margins while determining product prices as they switch to more trustworthy suppliers that provide higher quality goods10. Those who choose not to make this switch may also raise their prices in anticipation of any potential costs of remedies sought in future11. Moreover, the extra quality control checks on goods require extra manpower and resources. Consumers may be made to bear the burden of such compliance costs.

Secondly, consumers, particularly in markets supplying high value goods, may exploit the lemon law provisions. For motor vehicles found to be defective, the Additional Registration Fee and Certificate of Entitlement (COE) is transferrable to a replacement car if it is claimed either within a year of the vehicle’s registration or before reaching the first 20,000 kilometres12. In the event of a 7 J. Lim, ‘Complaints down 75% after ‘lemon law’: Case’ Straits Times (Singapore, 15 October 2012) 8 ibid 9 S. Ee, ‘Most car dealers welcome lemon law’: Business Times (Singapore, 5 September 2012) 10 Above, n.4 11 Above, n.5 12

R. Lee, ‘Dealing with lemons- Singapore style’ Business Times

sudden plunge in COE prices, buyers may make frivolous claims in attempt to get full refunds if they feel that they have overpaid for their cars.

Businesses will suffer in terms of greater costs and additional man-hours if operators were to challenge such claims13.

Moreover, in situations where a used car is defective and needs to be replaced, it can be difficult to find exact replacements that will meet the customer’s expectations due to the wide range of considerations (e.g. COE, mileage, age and colour of the vehicle)14. Unlike new car distributors who have factory warranties covering their cars, used car dealers are not covered under the lemon laws and have no redress from the customer whom s/he bought the vehicle from. In light of these problems, it is questionable whether the balance is now tipped too much in favour of consumers, creating a new set of problems for the fair trading industry in Singapore.

However, this does not entirely mean that retailers are left unprotected in the face of such exploitation.

For one, they are able to stipulate in a contract their right to rescind in the event of any serious defects or violation under the contract15. This will entitle them to a claim against the customer under the Singapore Sale of Goods Act (SOGA). Hence, while the lemon laws provide consumers with greater protection from unscrupulous trade practices, it will not be at the expense of retailers as they are able to protect themselves under alternative forms of legislation16. Moreover, businesses, especially large conglomerates, have greater bargaining power than the vulnerable consumer in a contract. As such, they do have that ability to set up bulwarks against consumer exploitation in the marketplace. The same cannot be said for the latter and hence, the new law arguably strikes the right balance between freedom of contract and consumer protection by granting consumers the ability to protect themselves from retailers who have adopted inequitable trade practices.

Thirdly, the new legislation is generally applied (Singapore, 23 May 2013) 13 Above, n. 6 14 Above, n. 5 15 ibid 16 S. Ow, ‘Lemon law provides protection for all goods: Forum’ Straits Times (Singapore, 29 October 2012)

to a wide range of goods (from household items to motor vehicles). The lack of specific guidelines makes lemon laws difficult to apply to goods that are vastly different in nature to other products.

At present, in considering one’s legal position in motor vehicle transactions, businesses and consumers need to review four different types of legislation- the CPFTA, HPA, RTA and SOGA17.

This is an onerous task for a consumer to perform, and also ironic for a legislation aimed to provide the public with comprehensive, user-friendly guidelines and easily available, quick remedies.

Admittedly, access to justice has been improved by simplifying the process of filing claims in the Small Claims Tribunal and reducing filing costs to as low as ten dollars. However, resolving a case in court still requires time18. The law is strangely silent on what should take place between the time a consumer makes a claim and when the matter is finally decided in court, especially when cases are capable of spanning out to a year on average19.

Moreover, while the law imposes obligations on retailers to repair or replace a defective good, it does not clarify what the ‘reasonable’ time is to do so and under what circumstances will it cause ‘significant inconvenience’ to the consumer20. This is entirely subjective and left to the interpretation of the courts. If consumers are uncertain of their chances in making a successful claim, they may not try altogether, thus rendering lemon law provisions ineffective. Such administrative problems may instead create more problems for consumers than provide them with the necessary redress.

However, the flipside is that this seeming arbitrariness may be necessary to allow flexibility.

The wide range of goods and complexities of various industry businesses mean that the time that a retailer needs to repair/replace a defective good will vary accordingly on a case-by-case basis. Thus, it must be noted that legislation can ultimately only go so far to protect consumers against bad bargains in sale-of-goods transactions. If consumers do not take heed to educate themselves and become more aware before making any transactions, the 17 V. Parwani, ‘Protecting consumers from lemon cars and vague laws’ Straits Times (Singapore, 25 September 2012) 18 R. Hartung, ‘You can help turn lemons into lemonade’ TODAY (Singapore, 27 January 2011) 19 Above, n.12 20

ibid

effects of the law will cease to be far reaching for the nation. There are many ways consumers can protect themselves from buying shoddy goods, and in turn, having to make a claim in court. The mere act of running a background check on a business through the Accounting and Corporate Regulatory Authority (ACRA) website can possibly save consumers thousands of dollars21.

Consumers can also attend seminars conducted

by CASE and trade associations to provide greater clarity on lemon law provisions. By taking active steps to ensure that the good in question is bought from a credible source, consumers can reduce the risk of having to make claims for defective goods.

Businesses that provide good quality goods tend to adopt strong warranty practices that entitle their customers to speedy repairs and replacements.

A COMPARATIVE ASSESSMENT As compared to countries like the UK or the US, Singapore, at present, has not implemented policies strong enough to have consumer rights firmly entrenched in its environment even though the CPFTA amendments are a celebrated welcome for it’s retail sector. No doubt the new legislation has to some extent been modelled after similar regulations in the UK and the European Union (EC directives); a natural progression since SOGA (chapter 393) is a re-enactment of the UK’s Sale of Goods Act 1979 (SGA). However, what has been implemented lacks the depth of character seen in other commonwealth states. For one, the operative clauses are seemingly too vague for trade associations to draw up a coherent framework of guidelines for retailers in the same market to follow. In response to such criticism, the Ministry of Trade and Industry has argued that the new law was designed to complement the existing allembracing construct of the SOGA (which also provides protection for a wide range of goods including motor vehicles)22. In light of statistical evidence collated by CASE, it has been shown that concern with defective products in Singapore is widespread and not particularly concentrated in one particular product group23. As such, there is no need to enact Acts that are product specific in 21 J. Lim, ‘Helping consumers to help themselves’ Straits Times (Singapore, 28 February 2013) 22 Above, n.14 23 ibid

Singapore as this might instead further complicate the legislation.

However, with the legislation applying generally to defects ranging from pets to cars, it begets the question of whether the law is sufficiently coherent to provide the comprehensive and accessible remedies that consumers are after.

In the UK, more specific guidelines have been created in the form of delegated legislation and the appointing of advocacy groups to provide greater clarity and fairness in retail markets of vastly different natures. For example, the Consumer Protection (Distance Selling) Regulations 2000 apply to transactions made online or over the telephone. Also, the Enterprise Act 2002 grants the Secretary of State for Trade and Industry to appoint consumer advocacy groups to represent consumer complaints in the different markets.

For one, the Campaign for Real Ale (CAMRA) protects consumer rights revolving around the tradition and quality of beer in the nation.

Moreover, active movements are constantly being pushed forward by governmental efforts and pressure groups to improve the standard of fair trade practices in the UK. One such movement is the Good Garage Scheme, an on-going movement aimed at improving motor repair standards across the nation. Member garages agree to comply with guidelines set out by the Department of Trade and Industry. As shown, such active lobbying by consumers highlights their ability to influence fair trading practices in the nation. Unfortunately, the same amount of dedication to a cause is lacking in Singapore, with CASE being the sole body representing consumer complaints for all aspects of defective products. Thus, the lack of progression in Singapore’s fair trade environment can be attributed, on some level, to the apathy of citizens in fighting for stronger consumer protection policies. One way to initiate such a transformation in its fair trading culture is to start educating consumers and businesses of the benefits they can ultimately gain from adhering to more equitable and fair practices24. Once such a mindset is inculcated in society, it is arguable that engraving consumer protection policies at the core of each business transaction may not be too far a goal to reach in the near future.

24

Above, n. 20

Consumer protection laws in the US reflect policies on a similar (or even greater) scale to the UK’s. However, it focuses on the extension of rights of warranty agreements. Notwithstanding the fact that each state has its own set of lemon laws governing it, an overarching federal lemon law protects citizens of all states in addition to consumer protection rights already made available in each state under the Magnuson-Moss Warranty Act 197525. The Act regulates ‘implied warranties of merchantability and express product warranties on consumer products from a manufacturer or seller and improves consumers’ access to warranty information by encouraging warranty competition from manufacturers and suppliers26’. Also, making the efficient completion of warranty obligations necessary under the Act makes it easier for consumers to claim for a breach of warranty on the grounds of violation of a federal law. In such circumstances, consumers are entitled to a recovery of legal fees and costs27. Lemon law provisions in Singapore have not gone far enough to include such variance and flexibility in its consumer protection policies. However, it is arguable that the development of consumer protection laws in Singapore is lagging behind the UK and the USA by more than two decades and hence, to gauge the strength of its consumer protection policies as compared to the aforementioned countries might be too premature a step to take.

Instead, such comparison highlights the considerable potential for development in protecting consumer rights in Singapore’s fair trading environment. For one, consumer protection in Singapore can be improved upon by creating a distinct body of rules specifically catered to product liability. At present, the legal framework governing such damages is found in different aspects of tort and contract law, making it insufficiently clear for consumers to be made aware of their rights. In the UK, product liability laws are found under the Consumer Protection Act 1987. Under the Act, any physical damage or death caused by defective products is a strict liability offence, rendering the producer legally responsible for the damage or loss caused regardless of culpability. Thus, through a gradual 25 26 27

Above, n.10 ibid ibid

inculcation of such policies tailored accordingly to societal needs, Singapore can ultimately achieve fair trading standards equivalent to that of the UK or US. CONCLUSION The lemon law provisions seem to be a step in the right direction in terms of improving the standards of retail practice and strengthening consumer protection in Singapore. However, the developments should not stop at the 2012 amendments in light of the comparisons made with practices in other commonwealth states.

While the enactment of lemon laws in Singapore is a significant breakthrough for consumer protection in the nation, it has not matured to a stage where it is able to inculcate a commercial culture that robustly protects consumer interests in the nation. Nevertheless, the enactment of lemon laws has evidently proven to enhance consumer protection by a significant margin in Singapore and the nationâ&#x20AC;&#x2122;s first step towards achieving a more equitable fair trading environment has proven to been a much awaited welcome.

POLICING ORGAN DONATION POLICIES Should altruism continue to be the cornerstone?

by Meera Rajah

University College London

Recent medical advances in human organ transfer procedures have made routine what was once unimaginable. Current organ shortages cost lives.

Unfortunately, there appears to be a profound lack of consensus as to what circumstances these procedures can be best employed to optimally improve lives. Near universal bans on incentive based arrangements1 are the unhappy consequence of conflicting views regarding the moral authority of individuals over their bodies, the moral 1 Cherry Mark, Persons And Their Bodies: Rights, Responsibilities, Relationships (Kluwer Academic Publisher, 2001, 2nd Edn), 1

authority of the state2, the moral significance of commodifying human body parts3, the nature and moral implications of exploitation4 as well as the likely impact of alternative policies.

Plainly, resolving these differences will have life and death implications for many and, perhaps, 2 Nozick Robert, Anarchy ,State and Utopia, (1974), 206-7 3 Radin Margaret, Contested Commodities, The Trouble with Trade in Sex, Children, Body Parts and Other Things, Harvard University Press (1996) 96-99,159-63

4

Kant Immanuel, Critique of Pure Reason (Cambridge Mass Press 1997), A538=B560

potential moral implications for more. The question is: where to draw the line5?

Altruism is a societal good that increases social cohesion and our sense of community and should therefore be encouraged6. Singapore’s Human Organ Transplant Act (HOTA) allows for the organs (kidney, liver, heart and cornea) of Singapore Citizens and Permanent Residents to be donated in the event of death, for the purpose of transplantation only.7 The prevailing policies for organ donation in many countries are currently underpinned by concerns that uneasily view incentives as feeding an undesirable transactional element into “this world of gift”8 that would be morally corrosive9 and eventually effectively crowd out altruism10 as well as threaten social institutions. Concerns about the integrity of the medical profession being undermined have also been articulated11. These are of course all weighty concerns that must be carefully analysed and addressed. However, the real contest of ideas should be centred on the moral permissibility of a pluralistic policy approach in organ donation and the precise basis of bans on incentive based donations.

A pluralistic approach does not necessarily entail the moral endorsement of all the alternative approaches to increase organ donation. All it requires is recognition that the lack of real choices cannot be morally (and legally) justified.

Conjectural concerns about the diminution of altruistic motivations in organ donations should not unduly constrain policies as it cannot be plausibly established that this will diminish the altruistic quotient and or supply of transplantable organs within societies.

5 Healy Kieran, Last Best Gifts, Altruism and the Market for Human Blood and Organs (University of Chicago Press, 2006), 6 6 Mahoney Julia, The Market For Human Tissue, (2000) 86 VA. L. REV. 163, 215- 17 7 Live On, (2012) “Human Organ Transplantation Act” http://www.liveon.sg/content/moh_liveon/en/organdonation/hota.html.

Accessed: 17 July 2013.

8 Mahoney Julia, (2009), 72 Law and Contemporary Problems 17 9 Sandel J Michael, What Money Can’t Buy, The Moral Limits of Markets (Farrar, Straus and Giroux, 2012), 124 10 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 270-7 11 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008 ,2

Paradoxically, the virtue of altruism instead of being preserved by this ban is being eroded by inherent limitations of existing schemes and the desperation of those on the burgeoning waiting list12. There are some 450 patients on the National Kidney Transplant waiting list in Singapore – some of whom have waited as long as 19 years.13 In 2012, 22 patients died while waiting for a suitable organ match.14 In the UK, three people die each day while waiting for an organ15 while countless others continue to suffer. Even the American Medical Association, once implacably opposed to incentives, is now prepared to consider reviewing its position16.

It is suggested that the corset of altruism in organ donation policy shaping should be loosened. Much of the underlying debate about commodification of the body appears to stem primarily from anachronistic religious taboos. More pertinently, there is no general consensus on what altruism precisely means and depending on precisely which definition is adopted broad categories of donations may not qualify as altruistic donations. Crucially, permitting altruism to dictate how policies should be framed has effectively “crowded out” pragmatic alternatives. We live in an imperfect world and the experiences in countries that have organ procurement schemes undergirded by altruism have been far from encouraging17. Loyalty to this idealistic principle need no longer be afflicted by moral myopia.

Part I of this essay will define the key terms in this essay and suggests how altruism acquired its present eminence. Part II describes current organ donation policies in Singapore, the proposed incentives and the interrelation of altruism with these policy proposals. Parts III and IV examine the essentialist and egalitarian theories. Part V examines other approaches and the shortcomings 12 Hippen Benjamin, The Case for Kidney Markets, 2008, 14 The New Atlantis, 47-51 13 Live On, (2012) “Organ Donation and You” http://www.liveon.sg/content/moh_liveon/en/organdonation/donation. html. Accessed: 17 July 2013.

14 ibid.

15 BBC, (2011), “Organ Donors should be offered funeral expenses” http://www.bbc.uk/news/health-15242675. Accessed: 4 April 2013.

16 Mahoney Julia, (2009), 72 Law and Contemporary Problems 18 17 Beard T Randolph. Jackson D John, Kaserman David, 2008 Regulation (Winter) 22-30

of according undue deference to altruism. Part VI considers the role of the State, driven by a market economy, within a secular moral framework and is followed by the Conclusion.

I. ALTRUISM AND ITS NEXUS WITH ORGAN DONATION Three key terms merit elaboration, namely “altruism”, “constraint” and “policies”. Starting inversely, the term “policies” embraces courses of action taken by governments to achieve communitarian goals18including legislative action.

“Constraint” refers to a fetter that curbs free action19. The critical term is of course altruism and this requires amplification. Ordinarily, this refers to acts that are motivated by concern for others without expectation of reciprocity20. Most would agree that the act is an end in itself21. Such acts even if they benefit the giver in the form of a “warm glow” ought to be regarded as altruistic.

Enjoying an action does not change the fact that it is altruistic22. Nevertheless, Nagel, an influential jurist, more rigidly, maintains that altruism should not be confused with generalized affection.

It is the “willingness to act in consideration of the interests of other persons, without the need of ulterior motives”23. The English Nuffield Report defines altruism in a broader sense. It is motivated by concern for the recipient and need not be “thoroughly pure”24. The complications raised by these different approaches will be elucidated upon below.

Why is a ban that patently costs lives been so widely embraced? Humans have always been separated by incompatible moral views and metaphysics.

These differences are further compounded by rigid religious beliefs and conflicting cultural views on the sanctity of the body. The fact that organ 18 Oxford English Dictionary (Clarendon Press, 2nd Ed, 1989), Vol XII, 27 19 Oxford English Dictionary (Clarendon Press, 2nd Ed, 1989), Vol III, 792 20 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011 , p 4 21 Sober and Wilson , Unto Others: the evolution and psychology of unselfish behaviour, 17 22 Schmidtz David, Reasons for Altruism, Social Philosophy and Policy 10,No 1(1993): 65 23 Nagel, The Possibility of Altruism (Princeton University Press, 1970), 1 24 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 139

transplants have only become a medical reality in the last few decades25 is significant and explains why primitive emotions to the “commodifcation” of the body are aroused. To some organ procurement has uncomfortable echoes of nineteenth century body snatching and grave robbing26. To some extent, the present process resembles the controversies that dogged the growth of the life insurance market27.

Changing ingrained views about the sanctity of the body and consensus building requires time.

At the risk of oversimplification, it can perhaps be said that there are now two sharply contrasting moral visions about life. One view is that human dignity and well-being is harmed if organs are commoditised in any way28. The other view is that permitting incentives affirms human dignity by acknowledging that the majority of participants will behave responsibly29. The ban against incentives is predicated on the former view and appears to be a “secular” reincarnation of religious views.

The traditional Christian view was that the body was a temple of the Holy Spirit and should not be mutilated. Pertinently, many other non-Christian societies believe in reincarnation and the need to preserve the whole body30. Gradually, shards of morality about the inviolability of the human body and opposition to mutilation have penetrated the moral subconsciousness of many societies. This is not unlike the origins of the prohibitions against homosexuality and euthanasia. Further, in relation to the transfer of body parts there also exists significant secular opposition, such as the Kantian school, deeming any manner of exchange of body parts as constituting a violation of the person31.

Kant even suggested that selling one’s hair is not without moral fault32.

25 Beard T Randolph. Jackson D John, Kaserman David, 2008 Regulation (Winter) 22 26 Healy Kieran, Last Best Gifts, Altruism and the Market for Human Blood and Organs (University of Chicago Press, 2006), 3 27 Healy Kieran, Last Best Gifts, Altruism and the Market for Human Blood and Organs (University of Chicago Press, 2006),18 28 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 253-55 29 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 27 30 McFadden J. Charles, Medical Ethics (Burns & Oates, 5th Ed, 1961), 255-58 31 Kant Immanuel, The Metaphysical Principles of Virtue: Part II of The Metaphysics of Morals, Part 2 (Bobs-Merill Co, 1964), 84 32 ibid 84

Given this historical context it is understandable how religious taboos and philosophical concerns have over time evolved into visceral moral objections without any compelling secular justification. Responding to these objections and the disquiet over possible erosion of social cohesion inspired by shared moral beliefs, many societies have locked themselves into altruistic programmes in organ donations33 without serious debate regarding its effectiveness in a completely different technological environment34.

II CURRENT ORGAN DONATION POLICIES AND INCENTIVES Singapore has recently amended its HOTA to allow for the reimbursement of living kidney donors for direct expenses, indirect losses and future expenses incurred as a result of the donation.35 To provide some context, direct expenses are inclusive of transport and accommodation, whereas indirect losses would encompass the loss of earnings reasonably attributable to the donation. Future expenses is a broad category, not limited to the anticipated costs of medical follow-ups; it includes the costs of long-term care of the donor. Before the amendment, the HOTA had prohibited any payment. Now, under s. 4(3)(b), the Act has even made allowances for Government-implemented schemes to grant medical privileges to the organ donor or a chosen beneficiary.36 It is unclear, from supplementary material, as to what these medical privileges encompass.

THE BACKGROUND CONTROVERSY SURROUNDING THE HOTA The public debate that led up to the 2009 amendment burgeoned beyond the issue of organ donation; it unfurled into a debate apropos the organ market.37 Indeed, the then Minister of 33 Goodwin Michele, The Veneer of Altruism, Virtual Mentor, ( 2012), 256 34 Beard T Randolph. Jackson D John, Kaserman David, 2008 Regulation (Winter) 22-30 35 s. 14(3) HOTA; Lim Meng Kin, (2009) “Reimbursement of living organ donors” http://hpm.org/en/Surveys/University_of_Singapore_-_Singapore/13/Reimbursement_of_living_organ_donors.html.

Accessed: 18 July 2013.

36 s. 4(3)(b) HOTA 37 Lim Meng Kin, (2008) “Legalisation of Organ Trade” http://www.hpm.org/de/Surveys/University_of_Singapore_-_Singapur/12/ Legalization_of_organ_trade_.html. Accessed: 18 July 2013.

Health, Mr Khaw Boon Wan, was of the view that we should not “write off or reject” the possibility of regulated transactions. This is a controversial stance: Iran is the only known country to have implemented a legal organ market. He suggests a progressive approach, “[F]irstly, to restrict trading to kidneys; secondly, to eliminate a direct transaction between the donor and the patient by letting an independent professionally-run third party manage the donor pool and match the transplants; and thirdly, requiring stringent screening and full disclosure and communication on risks to the donors and their families.”38 He justified that the driving force behind such a policy would be to prevent the exploitation of the poor, to educate them as to the true value their organs held. This would effectively arrest any likelihood of an organ black market or the flourishing of “transplant tourism”.

The primary objections to payment were founded on ethical grounds39: altruism was a key issue. A heavy outpour of emotive letters from the public suggests that the term “payment” offends the senses of more conservative Singaporeans. An apparent majority was unready to accept any form of organ trade, regardless of how it is structured.40 The Ministry of Health then sought to calm the waters; it clarified that the objective of the policy review was to protect those in need of organs, rather than to encourage an active organ trade. It pointed out that several other countries, including the UK, the United Sates and Australia, have introduced some form of donor ‘compensation’.

The focus of the debate shifted to more guarded terms: ‘compensation’, and then ‘reimbursement’.

Nevertheless, this too was not free from controversy.

Reimbursement would fall under Nuffield “altruist-focused interventions”; it does not offend the core of altruism per se. The complications identified were not directly related; to list a few – concerns that (1) the lack of a robust means of regulating reimbursement would open the “back door” to the lucrative business of organ trade, and continued exploitation of the poor, (2) the absence 38 39 40

ibid. ibid. ibid.

of reimbursement caps and detailed formulae for assessing indirect losses (as the Minister did not wish to “hardwire technical matters” into the Act) meant it was unclear when reimbursement might become an inducement, and lastly, (3) Singapore might be en route to morphing into a centre for “transplant tourism”.41 The retreat from the shaky grounds of “payment” to the safer notion of “compensation”, and finally to the barbican of “reimbursement” proved a wise strategy. The Singapore Medical Association and patients were highly supportive of the revised approach.42 THE INTERPLAY BETWEEN HOTA AND ALTRUISM The amendments to HOTA have not changed the fact that organ trade in Singapore remains illegal.43 Motivations vis-à-vis cost reimbursement are not the source of conflict with altruism, although the concept of rewarded gifts and Mr Khaw Boon Wan’s aforementioned proposals apropos a regulated market would be. Singapore’s National Medical Ethics Committee subsequently endorsed the proposal to reimburse living kidney donors, “so long as the amount is not so great as to act as inducement”.44 However, in suggesting that altruism might be directed beyond organ recipients, Nuffield altruism appears to potentially embrace a wider definition of altruism that might permit benefits to next of kin: as a reading of s.

4(3)(b) HOTA could provide for.45.

Three main policies inform the debate as to what could increase human organ donation: (i) presumed consent, (ii) directed donations, and (iii) commoditisation through markets.46 The notion of presumed consent – while clearly controversial, especially due to the sheer 41 ibid.

42 ibid.

43 Lim Meng Kin, (2009) “Reimbursement of living organ donors” http://hpm.org/en/Surveys/University_of_Singapore_-_Singapore/13/Reimbursement_of_living_organ_donors.html. Accessed: 18 July 2013.

44 ibid.

45 Moorlock G, Ives J, Draper H, Altruism in organ donation: an unnecessary requirement? 2013 J Med Ethics 1 46 Goodwin Michele, Altruism’s Limit’s: Law, Capacity, and Organ Commodification, (2004), 56, Rutgers Law Review, 305

impossibility of ensuring everyone is sufficiently well-informed to have the idea to opt out47 – does not directly engage the issue of altruism. However, directed donations even though apparently altruistic nevertheless raise difficult questions as racial motivations and narrow personal preferences sometimes come into play48. The third alternative, incentives, is where altruism comes into direct conflict. Further, there is a distinction between living and dead donors. Altruism has proved more controversial apropos the former.49 However, the same concerns apply to both: does the receipt of a potential benefit make a donation unaltruistic?

ALTRUISM AND ORGAN DONATIONAN “ORGANIC” OR IMPROBABLE RELATIONSHIP? THE ‘GIFT’ RELATIONSHIP In his influential work, The Gift Relationship, Titmuss’s central thesis was that incentives would crowd out altruistic donations, so that contrary to the Law of Supply, they would reduce both the supply and quality of blood50. Fellow travellers, like Singer51, opine that this would diminish altruism and, consequentially, social cohesion by coercing altruists.

Can the same concerns in relation to altruism be faithfully “transplanted” to organ donation?

Titmuss’s theory says one thing, but practice demonstrates otherwise. Organs, unlike blood, have no substantial system of free donation in place.52The cost of blood is several magnitudes lower than that of an organ transplant. Blood, like gametes and embryos, is also replenishable.

It is unwise to draw inferences from one market to 47 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 10 48 Goodwin Michele, The Body Market: Race Politics & Private Ordering, (2007) 49 ARIZ.L.REV.599 49 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 2 50 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970) 51 Singer P, Altruism and Commerce : a defence of Titmuss against Arrow, Philosophy and Public Affairs, 1973 ,Vol 2 312 52 Wilkinson Stephen, (2012), “The Sale of Human Organs” The Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/organs-sale/. Accessed: 4 April 2013.

another53. As mentioned, there remain 450 patients on the National Kidney Transplant waiting list in Singapore.54These statistics are limited to kidneys; a vast number of individuals that need organs of other varieties are not accounted for. Clearly, the current policies do not work.55 Proponents of altruism, however, claim that the system is not dead – in America, hundred donate annually.56 However, as Epstein perceptively notes, this is a limited outcome that does not explain altruism’s behavioral implications57. Altruism functions at “maximum capacity with significant resources”58 to reap minimum rewards. Altruism arguments work better for things which are already freely donated on a large scale, rather than things which are scarcely freely donated at all.59Further, as the level of personal connections gets weaker, the rate of altruistic behavior also declines60. It may also be said that the levels of altruism vary in different societies and hence incentives are needed in the US to increase the blood supply61. Commercial blood may therefore be a consequence and not a cause of insufficient altruism.

Additionally, empirical models suggest that altruists, like everyone else, will also respond to the incentives created by costs, benefits and the ratio between them62.

53 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 21; Dworkin Gerald, Morality, Harm and the Law, Markets and the Morals: The Case for Organ Sales (1994) 156-161 54 Live On, (2012) “Organ Donation and You” http://www.liveon.sg/content/moh_liveon/en/organdonation/donation.html. Accessed: 17 July 2013.

55 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 6; Goodwin Michele, Altruism’s Limit’s: Law, Capacity, and Organ Commodification, (2004), 56, Rutgers Law Review, 305 56 ibid 57 ibid.

58 ibid 59 Wilkinson Stephen, (2012), “The Sale of Human Organs” The Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/organs-sale/. Accessed: 4 April 2013.

60 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 200, 4 61 Arrow K, Gifts and Exchanges, 1972, Philosophy and Public Affairs 343 62 Epstein, 21

THE PURITY OF ALTRUISM Nagel’s altruism would require the rejection of any organ not donated entirely dispassionately.

For instance, directed donations to family members might thus not qualify. For Blum, as “sympathy, concern and care” are irrefutably “altruistic emotions”63 such donations would be altruistic. Plainly, the adoption of different senses of altruism would have different implications.

Unfortunately, this is precisely what has happened in the course of this heated moral wrangling which has been aptly termed as “moral myopia”64 .

The term altruism has been used loosely by many to embrace many different concerns. Pertinently, even Nuffield altruism is controversial as it seems to permit some financial incentives and accepts that motives need not be pure65. It also sanctions racially directed donations while vaguely alluding to the communal virtue of “self sacrifice for the needs of others”66. The reality is that complex motivations are always involved and it is an impossible task (and unwise) to box them or to pass moral judgment on donors. In sum, altruism is as slippery a concept as empathy. While Nuffield approach is not without serious shortcomings, it does at least have the merit of acknowledging that altruism cannot be the only guiding principle67 and that reciprocity has a part to play.

The crux of altruists’ arguments against incentives appear to function on the basis that additional incentives introduce an element of self-interest – that one “desires money”, so is thinking “primarily of his own” welfare, separate from other people’s welfare.68 But is there an inevitable psychological conversion that causes the supply of altruists to decline once incentives are offered? This really depends on the value of the additional incentive.

Titmuss himself acknowledges that, even in the case of the ‘gift’ donor, no donor engages in “complete, disinterested, spontaneous altruism”.69 There must be some sense of obligation, some 63 Blum L, Friendship, Altruism and Morality (Routledge & Kegan Paul, 1980), 26 64 De Wispalaere, Altruism, Impartiality and Moral Demands, Crit Rev Int Soc Polit Philos 2002, 5:9 65 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 139 66 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 144 67 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, (Cap 5) 68 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 240-258 69 ibid.

desire for approval – a need to feel ‘included’ in society.70 Nuffield draws a distinction between ‘altruistic-focused interventions’ and ‘nonaltruistic focused interventions’.71 The former involve the removal of various disincentives to act; they may prompt individuals to act, but would not on their own provide a reason for acting if altruistic motivation were lacking. 72 The latter are the reason why individuals act distinctly from altruistic sentiments. An appropriate analogy is that of the policeman: he could not apprehend criminals if not legally empowered to do so.

However, does the fact that he is paid mean he cannot also have altruistic motivations? An affirmative answer would be an overly stringent approach to the notion of altruism. After all, there are many who take underpaying jobs that allow them to draw on their altruistic idealism. There is nothing morally wrong about incentivising them to discharge particular responsibilities.

Proponents of altruism73 argue that since those motivated by ‘non-altruistic focused interventions’ are not altruistic in the first place, they undermine the intrinsic motivations of others. Frey’s study of how support for the construction of a toxic nuclear waste facility diminished once monetary compensation was offered supposedly illustrates that external intervention can “crowd out” intrinsic motivation.74 This and the example of the Israeli day care centre where pricing for late pickups permanently altered the parents’ relationship with the school are tirelessly cited for the proposition that extrinsic incentives inevitably prevail over intrinsic motivations75. Nevertheless, all these studies have inherent methodological weaknesses tied to singular pricing mechanisms and their peculiar contexts76. Epstein, on the contrary, cogently argues that it can be assumed that incentives would keep altruists engaged by 70 ibid.

71 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011,167-70 72 ibid.

73 Frey S Bruno, Not Just For The Money (Edward Elgar Publisher, 1997), 24-25; Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 245-6 74 Frey S Bruno and Oberholzer-Gee, The Cost of Price Incentives, (1997) 87 American Economic Review, 746-55 75 Rothman and Rothman, 2006, The Hidden Cost of Organ Sale, 6 American Journal of Transplantation, 1525-6, Sandel J Michael, What Money Can’t Buy, The Moral Limits of Markets (Farrar, Straus and Giroux, 2012), 114-20 76 Rothman and Rothman, 2006, The Hidden Cost of Organ Sale, 6 American Journal of Transplantation, 1526

offering “independent confirmation” of the high value of their donations.77 Offering an incentive does not mean that the donor is obliged to take it, it merely provides choice78. If one refused the incentive, this would arguably award the act with even more dignity. Hence, the ‘crowding out’ thesis is not a complete answer for using altruism to restrict policy-making.

THE NATURE OF ALTRUISM Hypothetically, even if incentives undermine altruism, why is this a bad thing? The response to this rests to an extent upon whether altruism is viewed as obligatory or supererogatory.79 It should also be noted for completeness that there is now credible evidence suggesting that the two basic traits of evolution - mutation and selection are complemented by a third trait, cooperation80.

Detailed discussion of this is outside the scope of this essay though it bears mention that there is no evidence that incentives offered in one singularly discrete area of interaction can alter this.

Titmuss appears to settle for an obligatory approach. He asserts that altruism offers a sense of “fellowship”, of solidarity – one of the fundamental building blocks of rights in our community.81 To introduce incentives is to cede “control [to] the forces of market coercion” and to remove society’s choice to “behave altruistically if they so will”82. In the organ sphere, this would “[allow] commercial forces to dictate the value of human flesh”.83 However, it is worth noting that Titmuss offers no concrete evidence to support this point84.

Further, if we were to view altruism as obligatory, by derivation, it follows that we are under a duty 77 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 20-5 78 Arrow K, Gifts and Exchanges, 1972, Philosophy and Public Affairs 343 79 Wilkinson TM, What’s not Wrong with Conditional Organ Donation, 2003 J Med Ethics 80 Warneken F.,&Tomasello,M, 2009, The Roots of Human Altruism. The British Journal of Psychology,100, 455-471, Scott Niall and Seglow Jonathan, Altruism, (Open University Press, Mcgraw –Hill, 2007), Chap 3 81 ibid.

82 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 274-277 83 ibid.

84 Dworkin Gerald, Morality, Harm and the Law, Markets and the Morals: The Case for Organ Sales (1994) 160

to be altruistic. How far can such a ‘duty’ go?

Critically, there has been no serious suggestion that the golden rule of not harming a “neighbor” inexorably extends to helping that neighbor85. All things considered, while it would be regrettable that altruism – this sense of communal “fellowship” – is eroded, there is plausible justification for accepting some risk in this discrete area given the potential number of lives to be saved.86 Moralists are generally suspicious of the atomisation of society stemming from reliance on markets making allocation decisions87. This concern, however, is not specific to organ donation and is in reality based on broader humanitarian concerns about the proper place of markets88.

Conceding ground in this contest for defining human identity is seen by moralists as a slippery slope.

Altruism is, at least from a legal viewpoint, supererogatory: it goes “above and beyond” one’s duty89 and cannot be compelled. This conclusion is supported by American case law: McFall v Shrimp90 and Curran v Bosze91. In the former case, Shrimp was the only suitable donor for a bone marrow transplant for the dying McFall, his cousin. It was held that the common law could not “compel” the defendant to behave altruistically92. This approach was affirmed in Curran: even a relative cannot be compelled to behave altruistically93. Pertinently, no common law jurisdiction has recognised the existence of a duty to be altruistic.

Further, not all shades of altruism maybe good, such as the racist organ donor94. He is still acting out of 85 Gensler Harry J, Ethics and the Golden Rule (Routledge, 2013), 3 86 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 20 87 Thomasma David and Thomasine Kusher, Birth to Death, Science and Bioetheics (Cambridge University Press, 1996), 128 88 Sandel J Michael, What Money Can’t Buy, The Moral Limits of Markets (Farrar, Straus and Giroux, 2012), 6-15; Satz Debra, Why Some Things Should Not Be For Sale, The Moral Limits of Markets (Oxford University Press, 2010) 89 Wilkinson Stephen, (2012), “The Sale of Human Organs” The Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/organs-sale/. Accessed: 4 April 2013.

90 McFall v Shimp, 10 Pa. D. & C. 3d 90 (1978) 91 Curran v Bosze, 566 NE 2d 1319 (1990) 92 Goodwin Michele, Confronting the Limits of Altruism, A Response to Jake Linford, (2009), 2 Saint Louis Journal of Health Law and Policy 327, 337-9 93 ibid.

94 Goodwin Michele, The Body Market: Race Politics & Private

concern for the well-being of others – albeit only a select community. This is morally problematic and disrupts social cohesion by deepening racial fault lines – such notions of altruism reap more social problems than they solve.

III ESSENTIALISM AND ALTRUISM Unlike the altruist, the essentialist examines the intrinsic qualities of organs, rather than the motives behind their donation. There are two popular versions of essentialism.95 Each has a different focus: (i) the body and the self, and (ii) the body and human flourishing.96 In opposing any erosion of the centrality of altruism, the essentialist’s arguments would stem from the notion that the introduction of incentives does little to distinguish organ donation from organ trading. The second Aristotelian notion is inextricably linked to altruism.

THE BODY AND THE SELF The medieval notion that no one was the owner of his own body (“dominus membrorum suorum nemo videtur”) was moulded by prevailing religious influences and outdated scientific notions. Today, “science ……permits us to understand the risks of dealing with human body parts while technology allows us to minimise these risks”97.

THE BODY AND HUMAN FLOURISHING Radin asserts that the commodification of aspects of the body promotes an inferior form of personhood, a second-class human life.98 Incentivising the donation of body parts undermines one’s regard for their body, and, hence, their sense of personhood per se.99 This viewpoint only has force in relation to living donors – deceased donors’ sense of ‘self ’ cannot be undermined after death. Perhaps, this view is best interpreted as being entangled with Ordering, (2007) 49 ARIZ.L.REV.599 95 Satz Debra , Ethics, economics and markets: an interview with Debra Satz,(2010) 3 Erasmus Journal for Philosophy and Economics, 68, 117-8 96 ibid.

97 Matthews Paul, The Man Of Property, (1995) Medical Law Review 3, Autumn, p256 98 Radin Margaret, Market-Inalienability(1987) 100 Harv. L Rev 1880, Radin Margaret, Contested Commodities, The Trouble with Trade in Sex, Children, Body Parts and Other Things, Harvard University Press (1996) 86-96 99 ibid

altruism: prompting one to donate their organs for additional benefits undermines community and “fellowship”100. By eroding a person’s values, there is further erosion of their personhood and hence has unavoidable moral consequences101.

This anxiety also resonates with the repugnancy concerns articulated by the Nobel Laureate, Roth102 and the Dworkinian notion that a “prophylactic line” ought to be drawn round the body to make it “inviolate103.

Nonetheless, it can be cogently argued that commodification empowers individuals by offering them a chance to ameliorate their condition – there is force in the argument that this could better their personhood. After all, are not lives now being traded on the basis of a theoretical value, whose worth has not been proven in practice? Further, human flourishing is an elusive concept.104 As Satz discerns, monotonous wage labor is similarly problematic.105 Such work prevents intellectual flourishing – a trait arguably as important as moral flourishing, in the form of altruism. The instructive response to unethical labour practices has been regulation through employment rights.

IV EGALITARIANISM AND ALTRUISM Egalitarian concerns turn the spotlight onto the correlation between organ selling and class inequality. Satz, a proponent of this theory, places particular emphasis on the vulnerability and weak agency of the lower-income classes; incentivisation exacerbates the class divide.106 Egalitarianism, like essentialism, has an altruistic dimension. Satz argues that additional incentives would particularly motivate the lower income groups to act for egoistical reasons at the expense of altruism. This will create a non-virtuous cycle.

A market mentality, she asserts, will exacerbate 100 Titmuss M Richard, The Gift Relationship, From Human Blood to Social Policy (Allen & Unwin, 1970), 253-55.

101 contra Dworkin Gerald, Morality, Harm and the Law, Markets and the Morals: The Case for Organ Sales (1994), 159-160 102 Roth, E. Alvin, Repugnance as a Constraint on Markets, 21 Journal of Economic Perspectives, 2007, 37-58 103 Dworkin Ronald, Comment on Naverson: In Defence of Equality,(1983)Social Philosophy and Public Affairs, 39 104 Satz Debra, Markets in Women’s Sexual Labor, (1995) Ethics, Vol. 106, No, 1 (Oct), 72 105 ibid 106 Satz Debra, Why Some Things Should Not Be For Sale, The Moral Limits of Markets (Oxford University Press, 2010), 197-199

the class divide, further potentially eroding altruism107.

THE VULNERABILITY ARGUMENT The egalitarian’s concerns, when dissected, are more relevant to discussions vis-à-vis how an organ donation system should function, not whether additional incentives should be introduced in the first place. This concern, however, can be assuaged by proper regulation of the market. By no means does the pragmatist argue for an unfettered market.108 WEAK AGENCY This aspect of the egalitarian concern focuses on donors, motivated by incentives, but insufficiently informed of the risks at stake109. Again, this could be largely ameliorated if the state regulated the process. Pertinently, Satz herself acknowledges that the weak agency argument might lead us to discourage altruistic organ donations as well as paid donations – there are potential health risks and perhaps insufficient information for all donors110. Altruistic donors do not necessarily receive more information.

Likewise, the egalitarian argument proves to be rather circular: it makes the wait for organs for the poor as long as it is for the rich. It ignores the reality that the wealthy may have alternative options to queuing: they could opt for ‘transplant tourism’. Egalitarian arguments suffer from the inherent vice that “unless all can receive, none should receive”.111 Is a moral theory that favours larger shortages to smaller ones justifiable?

In short, vulnerability and weak agency per se are not reasons to unyieldingly maintain the centrality of altruism. They are just reasons to better regulate the organ donation system – an issue that the state 107 ibid.

108 Wilkinson TM, What’s not Wrong with Conditional Organ Donation, 2003 J Med Ethics, 163 109 Satz Debra, Why Some Things Should Not Be For Sale, The Moral Limits of Markets (Oxford University Press, 2010), 195-7.

110 ibid.

111 Epstein A. Richard, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, John M Olin & Economics Working Paper No. 385(2d Series), Law School of the University of Chicago, 2008, 26

can solve. Free markets are not the only alternative to incentivising donations. The State can mediate.

THE ECONOMIST ON ESSENTIALISM AND EGALITARIANISM

V THE ECONOMIST: ASSESSING INCENTIVES AGAINST ABSTRACTIONS THE ECONOMIST ON ALTRUISM

The egalitarian argument that these incentives exert undue influence on the ignorant and indigent are squarely met by the response that the same objections apply to credit and insurance markets, yet there is no suggestion to completely shut down these markets.116 Instead, the proper solution is regulation: allowing the businesses to continue to operate, while imposing, for example, mandatory disclosure and public inspections. The current failure to introduce practical measures for reducing demand and increasing supply in fact contributes to exploitative, fraudulent and harmful treatment of vulnerable individuals. This has happened in parts of India, Pakistan and Brazil.117 The moralists also conveniently ignore the fact that the organ market is now global and bans at home effectively export the ethical problems118.

The concerns expressed by moralists and philosophers about altruism, while uncertain, cannot be lightly dismissed. Nevertheless, any repercussions for altruism really depends on the nature of the alternatives offered, and, even with fiscal incentives, the total amount offered or permitted. As Epstein perceptively observes, it is unlikely that there will be “some huge psychological transformation that requires the supply of altruists to diminish or disappear once a single dollar is offered for organs”112. Altruists, like everyone else, will respond to the incentives created by the costs and benefits of the additional incentives offered. This could be by accepting the incentives, as illustrating the independent high value of their acts113, or through rejecting the incentive, to award their donation with even more dignity. Plainly, markets do not inevitably drive out altruistic motives. For example, most hospital workers are paid, but there are still volunteer workers114.

Nevertheless, even if Titmuss’s prediction proves right and the altruist is alienated from donating, chances are that the strong response from egoists, will effectively negate any potential effect that this could have on the transplantable organ supply.115 Society stands more to benefit from the concrete saving of lives than to be held to ransom by a speculative decline in altruism.

112 ibid.

113 Ibid.

114 Dworkin Gerald, Morality, Harm and the Law, Markets and the Morals: The Case for Organ Sales (1994), 160 115 ibid.

It is noteworthy that the Iranian scheme119, though not without its blemishes, assuages the egalitarian concerns vide a charitable organisation providing remuneration to the donor if the recipient has insufficient funds120. There is no kidney waiting list in Iran121: the economist’s theory appears to be broadly corroborated. The concerns associated with a decline in altruism are not apparent in practice122.

VI PATERNALISM AND ORGAN DONATION Opponents of free markets assert that market exchanges are fundamentally wrong when they are morally corrosive, wrongly coercive and crowd out ethically superior methods of distributing scarce goods. Sandel, is of course, correct on some of these concerns. There should, for example, be no market for justice. But he is mistaken in asserting that economic necessity invariably coerces123. Necessity and coercion reduce options 116 ibid.

117 Goodwin Michele, The Veneer of Altruism, Virtual Mentor, (2012), 256-257 118 ibid.

119 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 145 120 ibid.

121 Hippen Benjamin, Friedman Ross and Sade M Robert (2009) 88 (4)Ann Thorac Surg 1054-5; Monti Jennifer, 2009, The Case for Compensating Live Organ Donors, Commercial Enterprise Institute, 7-8.

122 ibid.

123 Sandel J Michael, What Money Can’t Buy, The Moral Limits of Markets (Farrar, Straus and Giroux, 2012), 111

in entirely distinct ways. While it can be argued that poverty gives rise to necessity that is an objection to poverty only. Further, buyers do not create the necessity. Unfairness should also not be equated with a lack of choice. Poor economic circumstances that afford fewer alternatives do not create true coercion. Anomalously, it is bans that shrink alternatives open to those in real need124.

Admittedly, John Mill’s views on the limited role of the state go too far in deferring to humans as discriminating choosers. He fails to make the critical distinction between means and ends and acknowledge that soft paternalism can be justified125 . Plainly, the state has to play a role to limit markets in areas that undermine consensual values, social institutions and community cohesion and can (and indeed must) act paternalistically where the benefits justify the costs. Satz suggests that “closing off kidney markets” is “a kind of collective paternalism” that is autonomyenhancing as closing off one freedom leads to more freedom126. Organ donation, nevertheless, appears to be an area where anachronistic taboos under the guise of altruism have hijacked policy making.

In allowing this to happen States have not given adequate consideration to alternative policies such as incentivisation of donations in a regulated environment. Even Nuffield recognises that the existence of an incentive does not necessarily coerce127. The real issue is not whether altruism is a good thing (which it is) but whether the state should rely on altruism to marginalise other policies that could increase the supply of organs.

Policies can always be shaped to cohere with moral concerns. Supply is after all ultimately a complex socio-empirical and not just an essentially ethical issue128. Indeed, the current approach outlawing commercial exchanges to preserve altruism, ironically, may be said to be an attempt to coerce altruism129 as it does not offer any meaningful choice architecture for the critically ill.

124 Radin acknowledges this problem calling it “double bind”: Radin Margaret, Contested Commodities, The Trouble with Trade in Sex, Children, Body Parts and Other Things, Harvard University Press (1996) 125-6 125 Conly Sarah, Against Autonomy: Justifying Coercive Paternalism (Cambridge University Press, 2013), 1-10 126 Satz Debra, Ethics, economics and markets: an interview with Debra Satz, (2010) 3 Erasmus Journal for Philosophy and Economics, 80 127 Nuffield Council of Bioethics Report on Human Bodies: donation for medicine and research 2011, 148 128 Thomasma David and Thomasine Kusher, Birth to Death, Science and Bioetheics (Cambridge University Press, 1996), 129 129 ibid.

VII CONCLUSION More alternatives to purely altruistic donations would not inevitably “crowd out” the pure altruist nor necessarily diminish altruism. The ‘reimbursement’ scheme, under Singapore’s HOTA, is merely an “altruistic-focused intervention”.

Those motivated by a Kantian sense of obligation are unlikely to see their duty as conditional upon the responses of others.

In this author’s opinion, altruism – in whatever form it takes - should not be a reason for rejecting the progressive organ market that Mr Khaw Boon Wan originally proposed, at the start of the debate enveloping the 2009 amendments. Policies that place altruism on an altar maybe said to be impractical and unfair. Incongruously, they require a number of intermediaries, who unlike donors are paid and even profit130. Does not fairness require that donors be given the option of accepting incentives? Titmuss’s views were actually grounded on economics and social science and are essentially consequentialist in nature, unlike moral philosophers like Sandel who have visceral objections to incentives intruding in certain areas of human interaction131. Altruism must, however, be seen as a multifaceted relationship that often arises from mixed motives that include public approbation. Less than one percent of charitable gifts are anonymous, indicating the true importance of recognition132. Altruism can thus also be said to be a species of exchange.

Regrettably, those who maintain that altruism should constrain the employment of other policies prefer to overlook its true cost. Altruism is neither enhanced nor even preserved when lives are needlessly lost. Abstract concerns about the desirability of altruism are an insufficient reason to severely curtail legitimate values relating to personal autonomy and free will. These values should not be needlessly sacrificed at the altar of altruism for the sake of moral expediency.

130 Mahoney Julia, The Market For Human Tissue, (2000) 86 VA. L. REV. 176-185

131

Sandel J Michael, What Money Can’t Buy, The Moral Limits of Markets (Farrar, Straus and Giroux, 2012), 11-15

132

Glazer and Conrad, A Signaling Explanation of Private Charity, American Economic Review (1996) Vol 86, 1019

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THE LEHMAN AFTERMATH nancial regulatory landscape following the Lehman Brotherâ&#x20AC;&#x2122;s crisis, focusing in particular on recent amendments to the Securities and Futures Act (SFA), the Financial Advisers Act (FAA) and major Guidelines issued by the Monetary Authority of Singapore (MAS) after the crisis.

by Samuel Pang

University of Bristol

INTRODUCTION The United States (US) sub-prime mortgage crisis was a seminal event which had a profound impact upon the global financial landscape. The crisis was precipitated by a severe decline in the US housing market and a resultant surge in mortgage delinquencies.

Amongst the most significant casualties was the Lehman Brothers group of Companies. In September 2008, Lehman Brothers initiated insolvency proceedings. The scale of the Lehman Bankruptcy was the largest in US history.1 The financial system and corporate businesses were not the only casualties from the Lehman collapse. Many retail investors were also caught up in the financial tsunami. In Singapore, it was estimated that investment losses of about S$ 508 million were incurred from the Minibond saga.2 The results of the Lehman crisis gave rise to a series of legal disputes by investors who sought compensation from financial institutions. The fallout also prompted authorities in major financial centres, such as Hong Kong and Singapore, to reexamine their regulatory frameworks in order to minimize the impact of future financial shocks.

This article examines the changes which have occurred over Singapore’s financial regulatory landscape following the crisis, focusing in particular on recent amendments to the Securities and Futures Act (SFA), the Financial Advisers Act (FAA) and major Guidelines issued by the Monetary Authority of Singapore (MAS) after the crisis.

These changes are primarily concerned with minimizing the systemic risks to the financial system posed by Over the Counter (OTC) 1 “ Lehman folds with $613 Billion record debt”, by Sam Mamudi, Market watch, 15 September 2008, http://www.marketwatch.com/story/ lehman-folds-with-record-613-billion-debt?siteid=rss 2 Monetary Authority of Singapore, 7 July 2009, “Investigation Report on Sale and Marketing of Structured Notes linked to Lehman Brothers” http://www.mas.gov.sg/~/media/resource/news_room/press_releases/2009/INVESTIGATION%20REPORT_7%20JUL%2009.pdf

derivatives and with safeguarding the interests of retail investors who purchase complex financial products. This article will also briefly discuss the on-going class action lawsuit initiated by Singaporean investors against Morgan Stanley in the American State of New York.

REGULATORY REFORM OF THE OTC DERIVATIVES MARKET A. The Devastating Impact of Over the Counter Derivatives The potential problems that can be caused by OTC derivatives have been enumerated extensively, especially after the 2008 financial crisis. In particular, the Financial Stability Board (FSB)3 has expressed its concerns about the potential havoc which OTC derivatives markets can inflict on the financial system.

OTC derivatives are financial products which are not sold on standardized exchanges. Transactions in OTC markets are mostly conducted through individually negotiated transactions between two individual contracting parties, who each bilaterally manage the credit risk of the other party’s default. While many financial institutions participate in the OTC derivatives market, dealers are the dominant players in these markets. The dealers provide liquidity in the derivatives market by coordinating OTC trades between different individuals in the market such as individual financial institutions and other dealers. However, the highly interconnected nature of the OTC derivatives market gives rise to contagion risk within the financial system when a major dealer experiences financial difficulties.4 The devastating effects of contagion and counterparty risk were amply demonstrated following the collapse of Lehman Brothers, a major OTC derivatives dealer. Financial institutions which had been involved in 3 Singapore is a member of the FSB through the participation of the Monetary Authority of Singapore 4 Financial Stability Board, 25 October 2010, “Implementing OTC Derivatives Market Reforms”, www.financialstabilityboard.org/publications/r_101025.pdf

transactions with Lehman-affiliated entities were left to face staggering counterparty losses from Lehman’s bankruptcy. As a result, their worsening financial positions compromised their ability to meet their other financial obligations with non-Lehman affiliates5. The negative impacts of Lehman’s collapse spread quickly to all segments of the highly inter-connected financial system, causing global panic and tightening of credit. In addition, the sub-prime crisis demonstrated a lack of transparency in OTC derivative markets. These factors negatively impacted the ability of regulators to detect systemic risks and market misconduct.6

institutions must report any transactions in OTC derivatives to trade repositories licensed by MAS. In particular, Section 125 of the SF Amendment Act 2012 states that every specified person10 who is a party to a specified derivatives contract11 must report any information about the contracts they have entered into. Section 129 of the SF Amendment Act 2012 states that, in deciding whether a type of derivatives contract attracts reporting requirements, regard would be given to the system of classifying derivatives in Singapore as well as international developments in reporting derivatives contracts.

Due to these concerns, G-20 leaders at the Pittsburgh summit released a statement pledging to shift the trading of OTC derivatives towards standardized exchanges, where the trades would then be cleared by a Centralised Clearing Party (CCP).7 The FSB thereafter took charge of overseeing the required amendments to the regulatory framework of member states.

The purpose of trade repositories is to collect information about market transactions so that financial regulators can monitor abnormal developments in the derivatives market.12 To facilitate the reporting regime, Part IIA of the SF Amendment Act 2012 outlines the regulatory framework for the proper functioning of trade repositories. Trade repositories, for example, have statutory obligations to assist the authorities in the provision of information to detect market risks where required.13

B. Legislative Amendments to Reform OTC Derivatives Markets In order to uphold Singapore’s commitment to implement the proposals of the FSB, the SFA has been amended to achieve this objective of carrying out the necessary reforms to Singapore’s derivatives markets. The recent amendments are an initial step in reforming Singapore’s regulatory framework in the area of OTC derivatives trading in accordance with FSB proposals.8 The first objective of the statutory amendments is to set up the legislative framework to facilitate reporting of OTC trades. Part XVIA of the Securities and Futures Amendment Act 20129 mandates that both financial and non-financial 5 Other financial institutions or companies which were not members of the Lehman Brothers group 6 Per Minister of Finance Mr Tharman Shanmugaratnam, at the second reading of the Securities and Futures Amendment Bill , 15 November 2012, Hansard Volume 89 7 Financial Stability Board, 25 October 2010, “Implementing OTC Derivatives Market Reforms” www.financialstabilityboard.org/publications/r_101025.pdf See the Main Body Paragraph 13 8 Footnote No. 6 9 Amendment Act (No. 34 of 2012). Hereinafter referred as the SF Amendment Act 2012

The second objective of the SF Amendment Act 2012 is to impose requirements that subject certain types of OTC contracts to central clearing by CCPs. The purpose of encouraging central clearing of derivative trades is to minimize the prospect of large counterparty defaults destabilising the entire financial system14.

Part VIB of the SF Amendment Act 2012 therefore imposes obligations on market participants to subject certain proscribed derivative transactions to central clearing. Pursuant to Section 129C of the SF Amendment Act 2012, any specified person who is party to a specified derivatives contract shall arrange for the contract to undergo central 10 This generally refers to financial institutions as opposed to individuals. See Section 124 of the SF Amendment Act 2012 11 These are certain types of derivatives contracts identified by MAS, through regulations to attract the reporting requirements. See Section 124 of the SF Amendment Act 2012 12 See the definition of “trade repositories” under S46B of the SF Amendment Act 2012 13 See generally Section 46I of the SF Amendment Act 2012 14 Footnote No. 4, per Mr Tharman Shanmugaratnam

clearing.15 C. Evaluation of Reforms The abovementioned legislative reforms to Singapore’s regulatory framework are a major step forward in mitigating the considerable risks posed by OTC derivatives to the financial system.

The reporting requirements will allow authorities to obtain timely notice of any potential systemic risks and the move to expand the central clearing of certain derivative transactions allows CCPs to disperse counterparty risk among a wide number of market participants.

Nevertheless, concerns have been raised about the desirability and practicability of the proposed reforms. Some stakeholders have expressed their concern regarding the scope of their obligation in providing information to MAS. This concern is especially pertinent in situations when it might be difficult to ascertain the veracity of information provided by third parties.16 Also, concerns have been raised regarding the lack of clarity and potential width in defining “Specified Derivatives Contracts” that would qualify for reporting and clearing under the new legislation.17 There are also arguments that such onerous reporting and clearing requirements measures might produce a chilling effect on economic activity in Singapore’s financial sector.18 A comparative analysis of other major financial jurisdictions also shows that the road to more stringent regulation is anything but smooth. In particular, the Commodity Futures Trading Commission (CFTC) in the US, which administers reporting 15 For the definitions of specified person and specified persons relevant to the clearing regime, see Sections 129B and 129G of the SF Amendment Act 2012 respectively 16 Monetary Authority of Singapore, 10 October 2012, Response to Feedback Received- Proposed Amendments to the Securities and Futures Act on the Regulation on OTC Derivatives”, http://www.mas.gov. sg/~/media/MAS/News%20and%20Publications/Consultation%20Papers/ Response%20to%20Feedback_OTC_15Oct12.pdf See in particular Paragraph 5.5 17 Footnote No. 16, Paragraph 5.9. See also Mr Ong Teng Koon’s comments at the second reading of the Securities and Futures Amendment Bill , 15th November 2012, Hansard Volume 89 18 Per Mr Ong Teng Koon, MP for Sembewang GRC raising a question at the second reading of the Securities and Futures Amendment Bill , as referenced in Footnote No. 18

rules under the Dodd-Frank Act, has found itself undertaking a delicate balancing act between the interests of both major clearing houses as well as post trade services groups. The difficulties of such a balancing act are especially apparent when competing stakeholders threaten litigation against the regulatory authority to protect their interests.19 Former CFTC Commissioner Jill Sommers has also expressed concern regarding the confusion and the compliance burdens which the DoddFrank rules have generated. She instead prefers a less punitive principle based approach to the challenge of regulating market participants.20 On the other hand, a pure principle-based approach which excludes the use of penal measures also generates its fair share of problems. The challenges in meeting regulatory objectives through the use of such an approach are exemplified by examining the efficacy of Singapore’s Code of Corporate Governance (COCG).21 In particular, companies often abuse the leeway afforded to them through the “comply and explain” approach and fail to provide meaningful disclosures for deviating from the COCG. Also, companies are often pressurized to compromise the values enumerated in the COCG in the face of brutal competition and short-termism.22 The aforementioned disclosures are also not required by law to be audited by an independent third party in the same way as financial statements. Most importantly, it is observed that many companies are only concerned with a nominal compliance with the COCG in 19 Phillip Salford, The Financial Times, 5 May 2013, “CFTC to be sued over derivatives ruling”http://www.ft.com/cms/s/0/e18b771e-b34211e2-95b3-00144feabdc0.html#axzz2X9wYcpl7 20 United States Commodity Futures Trading Commission, 11 October 2012, “Speech delivered before the Cadwalader Energy Conference” by CFTC Commissioner Jill E Sommers http://www.cftc.gov/PressRoom/SpeechesTestimony/opasommers-24 21 There are no criminal penalties for breaching the Code of Corporate Governance. However, listed companies are required under SGX Listing rules to explain any deviations from the Corporate Governance Code.

22 Monetary Authority of Singapore, 1 October 2012, ““Corporate Governance: Going Beyond the Rules” Opening Remarks by Ravi Menon, Managing Director, Monetary Authority of Singapore, at the Securities Investors Association (Singapore) 4th Asian Investors’ Corporate Governance Conference, http://www.mas.gov.sg/news-and-publications/speeches-and-monetary-policy-statements/2012/corporate-governance-going-beyond-the-rules.aspx

order to fulfil minimum regulatory requirements.23 It can therefore be seen that the lack of punitive regulation, in conjunction with the prevalence of commercial realities, stymie the formulation of a corporate governance culture which safeguards the interests of shareholders. This failure could arguably be extrapolated to the case of derivatives reporting and clearing.

In light of the abovementioned considerations, MAS has decided to adopt a middle ground approach. In essence, this approach involves both the utilization of a legislative framework which sets up clearly defined rules and a flexible application of those rules by the regulatory authority.24 The proposed regulatory regime can thus be tailored to meet the requirements of financial markets, provide greater clarity and react to changing market circumstances.25 It is submitted that the proposed middle ground approach is the optimal course forward in the regulation of OTC derivative markets. Some degree of flexibility should indeed be exercised by regulators to avoid stifling the financial markets.

Nevertheless, the overriding objective of the newly introduced reporting and clearing requirements is to safeguard the vitality of the financial system.

The ability of OTC markets to cause systemic financial devastation militates against adopting a solely soft-touch principles approach without some degree of punitive measures. Furthermore, these legislative measures are also broadly similar to those currently being implemented by major financial jurisdictions in accordance with FSB guidelines.26 It is therefore unlikely that Singapore will lose ground in attracting investment in the financial sector as a result of these measures.

23 KPMG Audit Committee Institute, 4 October 2011, “Singapore’s Corporate Governance: Transformed: The Strategy to get it right”, http://www.kpmg.com/SG/en/IssuesAndInsights/CFOPublications/Documents/SingaporeCorporateGovernanceTransformed.pdf 24 This purported flexibility can supposedly be met through the use of subsidiary legislation, which will prescribe detailed requirements and exemptions in respect of the statutory rules 25 Footnote No. 6 , 26 Financial Stability Board, 15 April 2013, “OTC Derivatives Market Reforms- Fifth Progress Report on Implementation”, http://www.financialstabilityboard.org/publications/r_130415.pdf

INCREASED SAFEGUARDS FOR RETAIL INVESTORS Lehman crisis - Exposing lapses in Investor Protection?

The fallout from the Lehman Brothers collapse also highlighted the vulnerability of retail investors in Singapore’s financial marketplace. Many of these investors only realised after the event that they did not possess the requisite financial knowledge to evaluate the financial risks they were undertaking at the point of purchasing Lehman-affiliated products.

In tracing the history and evaluating the impact of the Lehman collapse on investors, it would be apposite to examine the relevant features of the salient Lehman products27 which caused investors to incur great losses. In essence, the redemption value of the Minibond is influenced by the occurrence of credit events involving specified institutions known as Reference Entities.28 In purchasing a minibond, the investor gains exposure to the credit risk of the Reference Entities. 29 An important feature of the Minibond securities was the fact that they were structured on a “first to default” basis. Thus, all that was required for Minibonds to be rendered worthless was for any one of the multiple Reference Entities listed in the Minibond contract to become insolvent.30 Even if more knowledgeable investors fully understood the “first to default” feature, these investors would most likely have been misled by the stellar credit ratings given to Lehman Brothers by credit rating agencies. On hindsight, these credit ratings were 27 Such as Lehman Minibonds and Morgan Stanley Pinnacle Notes distributed by Hong Leong Finance. Most of the Lehman affiliated products involved in extensive investor losses shared broadly similar features 28 Christopher Chen Chao-Hung (2011), “Product Due Diligence and The Suitability Of Minibonds: Taking The Benefit Of Hindsight”, Singapore Journal of Legal Studies, [2011] 309–329 29 Footnote No. 28. This feature was stated in the Base Prospectus and Pricing Statements of Minibond Series 9 & 10 (Base Prospectus) dated 26 June 2008 at p. 27. See Footnote 22 of Chen Chao-Hung’s article as referenced in Footnote 28 30 A common misconception was that it required all Reference Entities to default before a Minibond contractwas rendered worthless

grossly inaccurate.31 Given the various complexities involved with Minibond securities, it was inevitable that many investors misunderstood the product and were left unprepared when disaster struck. Despite the institutional failings within distributors of toxic products, which greatly compromised investor protection, MAS declared that the financial institutions distributing the Minibonds were not legally liable to compensate investors. If an investor opted not to use MAS’ dispute resolution scheme, he would either have to wait for the trustee to liquidate the underlying collateral in the Minibonds or independently pursue litigation against the distributors.32 The latter course was taken by some investors in the case of Soon Kok Tiang and others v DBS Bank Ltd and another matter.33 In essence, the key argument34 employed by the investors against DBS, the distributors which had sold them the DBS High Notes,35 was that the High Notes contract should be void for uncertainty due to the ambiguity involved in calculating the Credit Event Redemption Amount (CERA).36 This uncertainty had been caused by inconsistent definitions of CERA in the High Notes contract.37 However, Lee Sieu Kin J held that, notwithstanding the inconsistencies, the definition of CERA most favourable to the investors was an obvious clerical mistake. By applying the principles laid down in East v Pantiles (Plant Hire) Ltd38, the judge ruled that the CERA definition in favour of the investors 31 Per Lee Sieu Kin J in Soon Kok Tiang and others v DBS Bank Ltd and another matter [2011] 2 SLR 716 , at Paragraph 9.

32 Alan Ewins, Catherine Husted, Juliana Lee and Joyce Woo (2010), “The Lehman Aftermath: Hong Kong and Singapore Regulatory Reforms in the Structured Product Markets World”, Capital Markets Law Journal, Volume 5 , No. 3, Pages 301-323 33 [2011] 2 SLR 716 34 Soon Kok Tiang and others v DBS Bank Ltd and another matter [2011] 2 SLR 716, at Paragraph 15 35 A Lehman affiliated product which was distributed by DBS. Its features are broadly similar to that of Lehman Minibonds 36 This refers to the value of DBS High Notes when a credit event occurs, such as the insolvency of a Reference Entity like Lehman Brothers 37 Soon Kok Tiang and others v DBS Bank Ltd and another matter [2011] 2 SLR 716, at Paragraph 40 38 [1982] 2 EGLR 111 For alterations to be made by the court, there must firstly be a clear mistake on the surface of the document. Secondly, it must be clear what alterations should be made.

should be altered to remove any inconsistency with the notion that CERA would be zero upon occurrence of a credit event. As a result of this, the judge upheld the definition which stated that investors would not be entitled to any compensation upon the occurrence of a credit event, such as the aforementioned bankruptcy of Lehman Brothers39 In Soon Kok Tiang and others v DBS Bank Ltd and another matter40, Justice Lee’s decision that the High Notes contract should not be declared void for uncertainty was upheld by the Court of Appeal. More pertinently, the Court of Appeal took the opportunity to remind the public that a person who signs a contract is expressly bound by its terms. He would thereafter not be able to avoid his obligations under the contract on grounds of illiteracy, whether financial or linguistic. The rule of caveat emptor took precedence.41 In light of the Court of Appeal Ruling in Soon Kok Tiang, it is more critical that investors should be given all the necessary information for them to make the correct decision at the point of purchase.

Unfortunately, a mystery shopping survey conducted by MAS in 2012, 4 years after the crisis, showed that inadequate disclosures were still being given to consumers. In addition, it was found that about a third of product recommendations given to consumers were unsuitable because it did not match either their investment objectives or their investment horizons.42

LAWS TO PROTECT THE INTERESTS OF VULNERABLE INVESTORS The authorities have been neither incognisant 39 Soon Kok Tiang and others v DBS Bank Ltd and another matter [2011] 2 SLR 716. See paragraphs 46-48 40 [2012] 1 SLR 397 41 Soon Kok Tiang and others v DBS Bank Ltd and another matter[2012] 1 SLR 397, at Paragraph 63 42 Monetary Authority of Singapore, 6 July 2012, “MAS Releases Results of Mystery Shopping Survey Conducted on Financial Advisory Process of Banks and Insurers”, http://www.mas.gov.sg/news-and-publications/ press-releases/2012/mas-releases-results-of-mystery-shopping-survey.aspx

nor unresponsive to the shortfalls in investor protection within the financial marketplace.

Since the 2008 Financial Crisis, there has been a dizzying array of legal reforms in order to facilitate the goal of stronger investor protection. This essay will focus on the major legal reforms instituted

by MAS for the objective of protecting financial consumers during the sales process.

In July 2011, an important amendment was made to the Financial Advisers Regulations (FAR)43 by inserting Regulation 18B. Essentially, the Regulation mandates that, before selling a “new financial product”44 to a “targeted client”45, a Financial Adviser (FA) must carry out a due diligence exercise to determine whether the product is suitable for the customer. The due diligence exercise mainly involves FAs conducting checks on the features of the product.46 Also, sales transactions of new financial products cannot be completed unless every member of senior management within the FA firm personally approves the transaction and ensures that the product is suitable for the targeted client.47 Finally, the FA is required to maintain written records of both due diligence exercises as well as any approvals of the transaction by senior management under Reg18(3).48 In relation to the processes regarding the sale and marketing of Specified Investment Products (SIPs), MAS has issued two notices under both the SFA (the “SFA Notice”)49 and the FAA. ( the “FAA” notice)50 As defined in the two notices, SIPs are products which are not Excluded Investment Products (EIPs)51. Thus, SIPs would include exotic 43 Rg 2, G.N. No. S 462/2002 44 This is defined in the Regulation to mean financial products which are not sold on a standardized exchange and a product which has not been previously sold to the customer by the Financial Adviser. See Reg18B(9) 45 This is defined in the Regulations to exclude sophisticated and institutional investors. See Reg18B(9) 46 Such as investment objectives of the product, its key risks and the estimated costs incurred by the consumer upon purchasing the product 47 Reg 18B(3) 48 Reg 18(7). Records must be maintained for at least 5 years 49 Monetary Authority of Singapore, 28 July 2011, Securities and Futures Act “Notice on the Sale of Investment Products”, SFA 04-N12 50 Monetary Authority of Singapore, 28 July 2011, Financial Advisers Act “Notice on Recommendations of Investment Products”, FAA-N16 51 As defined in Annex 1 of both the SFA and FAA notices

products such as structured notes as defined in Regulation 2(1) of the SFA.52 In both the SFA and the FAA notices, requirements are placed on exempt financial institutions and financial advisers respectively to conduct assessments of their clients’ financial knowledge prior to any financial transaction.53 In addition, the FAA notice requires financial advisers to collect and document information regarding the particular characteristics of the client.54 The last legal development to be addressed in this article involves the key legislative amendments made under the Financial Advisers Amendment Act 2012.55 Under the amendments, the criminal liability of FAs not to make false or misleading statements to potential customers, pursuant to Section 26(1) of the FAA, has now been extended to statements made either recklessly or negligently.56 Previously, FAs were only liable if they had made false or misleading statements about the features of financial products with the intent to deceive.57 However, it has been clarified that no liability shall attach on FAs who have acted honestly, carried out required due diligence and made their product recommendations on a reasonable basis.58 The FA Amendment Act 2012 also introduces a regime of civil liability against FAs. If a FA fails to disclose all material information regarding 52 Products like Lehman Minibonds would fit the definition of structured notes as defined in Regulation 2(1) because they are issued in the course of a securitization transaction and also because their value is based on the credit risk of a basket of Reference Entities.See the definition of structured notes in the two MAS notices and in Regulation 2(1) of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005, No. S611 53 See Paragraph 7 of the SFA notice and both Paragraphs 17 and 17A of the FAA Notice 54 Such as his investment objectives, his risk tolerance and his financial commitments See Paragraph 11 of the FAA Notice. Such requirements are sometimes termed as know your Client(KYC) Regulations 55 Amendment Act (No. 35 of 2012). Hereinafter known as the FA Amendment Act 2012 56 Section 7 FA Amendment Act 2012. See in Particular Section 7(a)(i) and 7(a)(ii) 57 See per Mr Tharman Shanmugaratnam, at the Second Reading of the Financial Advisers Amendment Bill, 15 November 2012 , Hansard Volume no 89 58 Monetary Authority of Singapore, 15 October 2012, “Response to Feedback received- Consultation on Proposed Amendments to the Securities and Futures Act and the Financial Advisers Act.” http://www.mas. gov.sg/~/media/MAS/News%20and%20Publications/Consultation%20Papers/Response%20to%20Feedback%20Received_15Oct12.pdf See in particular Paragraph 8.5.

the features of a financial product to potential customers59 and these customers have thereby suffered damage or losses, the FA may be required to pay damages to potential customers for the losses suffered.60 Despite this, MAS desires to encourage investors to resolve disputes without using litigation.61 The FA Amendment Act 2012 therefore makes provisions for courts, in adjudicating any civil claims against financial advisers for inadequate disclosure or misleading representations, to take into account whether the plaintiff has taken measures to mitigate his damages or attempted to come to a peaceful settlement with his financial adviser.62 EVALUATION OF INVESTOR PROTECTION REFORMS The legal reforms mentioned in the preceding paragraphs can broadly be divided into two categories. The first is concerned with ensuring that investors receive accurate product recommendations to suit their needs. (“Product Suitability Rules”). The second category of reforms is concerned with ensuring that investors are provided with sufficient information by their financial advisers when they purchase a product. (“Disclosure Rules”).

The Product Suitability Rules discussed in this article include Regulation 18B of the FAR and the requirements prescribed under both the SFA and FAA Notices, which require an assessment of the personal characteristics of the financial consumer. The broad objective of such rules is to ensure that financial consumers either possess adequate financial knowledge to undertake riskier investments or are offered advice that is compatible with their investment objectives.

The complexity of many financial products and the infrequent purchase of these products by most consumers mean that financial advice of good quality is required for investors to truly understand 59 60 61 62

In contravention of Section 25(1) of the FAA Section 6 FA Amendment Act 2012 Footnote No. 57, per Mr Tharman Shanmugaratnam Section 99B of the FA Amendment Act 2012

their purchases.63 Product suitability rules, which enhance the quality of financial advice, are commonly regarded as playing an important role in investor protection. It has also been argued that Product Suitability Rules can reduce the risks of failures in both product regulation and inadequate disclosure.64 There are however three problems inherent in Product Suitability Rules. The first major issue concerns what is meant by a “suitable” product recommendation, which has not been definitively settled in the Singapore context. While most Product Suitability rules list the considerations which financial advisers should take into account when making product recommendations, these rules do not clarify the standard of “suitability” that must be met. One view is that the standard of suitability is discharged only when financial advisers make product recommendations which are tailored perfectly to the client’s needs.65 However, the fact that financial advisers only need to have a “reasonable basis” for their recommendations66 would seem to indicate that the “most suitable rule in inapplicable in Singapore. A more relaxed interpretation of the suitability rules proposes that the financial adviser discharges his duty as long as he does not recommend a product that is grossly inappropriate for his client.67 Additionally, Singapore could adopt the “comparative risk” approach to suitability employed in the United Kingdom. A product recommendation is found to be unsuitable where a financial product contains a higher level of risk than that tolerated by the consumer.68 For example, a Traded Endowment Policy is not suitable for a retiree because it cannot provide a fixed income and there is high risk of capital loss.69 Despite the variety of alternative interpretations, the lack of a coherent and 63 Strictly Financial, November 2008, “Accessing Investment Products: Consumer Perceptions of a Simplified Advice Process” Research Report prepared for the Financial Services Authority, Consumer Research 76 (2008) http://www.fsa.gov.uk/pubs/consumer-research/crpr73.pdf 64 Niamh Moloney (2010), “How to Protect Investors: Lessons from the EC and the UK” , Published by Cambridge University Press 65 Otherwise known as the “most suitable test” 66 See Section 27 of the FAA 67 This is known as the “not suitable” test 68 Footnote No. 28 69 R(Williams) v Financial Ombudsman Service [2008] EWHC 2142 Admin

trustworthy system to quantify different degrees of risk, as well as the uncertainty over how to best balance considerations of risk and return, remain stumbling blocks for the efficacious application of Product Suitability rules.70 The other major problem with respect to Product Suitability rules lies with financial product documentation. The verbose and voluminous documentation of exotic financial products, such as structured notes71 make them cumbersome to peruse and creates difficulties for contracting parties in understanding the full scope of their obligations.72 Also, the use of certain contractual clauses employed in the product documentation by the issuer to disclaim liability also acts as strong impediment in the application of suitability rules.

This is done either by listing out an extensive range of risk factors that might affect the value of the financial product73 or by employing nonreliance clauses that purport to suggest that no representations have been relied upon by the investor in the product prospectus and that the investor should conduct his own due diligence.74 If these clauses are held to be enforceable, then the investor would essentially be contractually estopped from making a claim based on Product Suitability Rules.75 Thankfully, despite the Court of Appeal’s support for the caveat emptor rule in Soon Kok Tiang, it has been hesitant to approve the use of non-reliance clauses so readily to immunise banks from alleged misconduct in selling financial products, especially in light of events after the 2008 financial crisis. This view was taken in the 70 Footnote No. 28 71 Footnote No. 28 72 This problem may now be ameliorated somewhat by recent Product Highlight Sheet requirements, which mandate that FAs must prepare a brief document listing the salient features of certain financial products 73 See for example the Base Prospectus of the Minibond Series 9 and 10 and Chen Chao-Hung’s article at Footnote 28 74 In relation to financial product transactions, non-reliance clauses commonly purport to suggest that no representations have been relied upon by the investor in either the product prospectus or in oral representations and that the investor should conduct his own due diligence regarding the features of the product.

75 See for example the case of Springwell Navigation Corp v JP Morgan Chase Bank [2010] EWCA Civ 1221. The doctrine of contractual estoppel has found some support in the Singapore context. See for example the case of Orient Centre Investments Ltd v Société Générale [2007] 3 SLR(R) 566 at Paragraph 50

case of Als Memasa and another v UBS AG 76 Due to this, the courts have also recognised exceptions against the operation of non-reliance clauses in cases involving unsophisticated investors, as seen in the case of Deutsche Bank AG v Chang Tse Wen. 77

Finally, Product Suitability Rules such as Reg 18B and the MAS notices impose onerous obligations on the financial advisory industry in conducting and documenting due diligence checks. Besides the administrative hassle involved, the due diligence checks may not be effective in safeguarding investor protection especially when investors are ignorant about their risk appetite78 or when inventors of financial products are dishonest about product features.79 In addition, there is uncertainty about the level of due diligence that must be undertaken. Does the financial adviser absolve himself only when he conducts the exercise to an objectively high standard compatible with the objectives of investor protection?80 The difficulties are also compounded by laws that fail to lay out an exhaustive list of factors required for due diligence exercises81 and specify the relative weight which financial advisers should give to these factors. In the case of Reg 18B of the FAR, the law may also be imposing obligations on senior management of financial advisory firms which are both onerous and impractical. For example, it is suggested that the wording of the FAR prohibits delegation by senior management in approving sales of financial products.82 A prohibition against delegation poses problems in practice for FA firms due to the large volume of individual transactions undertaken and the limited contact between its top executives and consumers. Thus, in deciding whether to approve product recommendations, it 76 [2012] 4 SLR 992 at Paragraph 29 77 [2013] 1 SLR 1310 at Paragraphs 136 and 138 78 Footnote No. 28 79 As is being alleged in the Morgan Stanley class action suit in the state of New York 80 Low Kee Yang (2012), “Product Suitability, Due Diligence and Management Responsibility- The New Regime of Regulation 18B of the Financial Advisers Regulations”, Singapore Academy of Law Journal (2012) 24 SAcLJ 81 For example, the words “shall include” in Reg 18B (2) suggest that the listed factors need not necessarily be the only factors which must be considered 82 Footnote No. 80

would be overly onerous for senior management of FA firms to be liable for unsuitable product recommendations without the benefit of being able to rely on either the opinion or information collated by junior staff 83. There are also doubts about the feasibility of securing unanimous assent by senior management in approving every sales transaction. For example, it is unrealistic for all members of senior management to have the same opinion regarding the suitability of product recommendations in every situation.84 As for Product Disclosure Rules, such as the recent FAA Amendments, it is submitted that they only address one small facet of the problems involved in securing investor’s protection. It is indeed likely that the new rules would prompt financial advisers to be more conscious in the way they present information to potential consumers, such as the need to emphasize both the upside and downside of an investment equally.85 However, it must be questioned how far financial advisers should be held liable when investments turn sour. The fallout of the Lehman crisis was something that would have been hard for even advanced modelling techniques to predict.86 A major event could cause a domino effect that destabilises the entire financial system and thus generate investment losses that are unrelated to the actions of financial advisers.87 Although the legislative amendments state that financial advisers would only be liable for investment which are attributable to their actions, it is unclear how such links will be drawn in future disputes after the FA Amendment Act 2012 given the possible matrix of factors involved in the depreciation of an investment. Because of this, the Financial Industry Dispute Resolutions Centre (FIDReC)88 and Section 99C of the FA 83 Such as junior financial advisers representing the firm. These financial advisers would have more contact with the consumers and are arguably better placed to decide whether a financial product is suitable for a consumer.

84 Footnote No. 80 85 Footnote No. 57 , per Mr Tharman Shanmugaratnam 86 As said by Lehman’s former global head of quantitative equity strategies. See Paragraph 10 of Soon Kok Tiang and others v DBS Bank Ltd and another matter [2012] 1 SLR 397 87 Footnote No. 57. See the comments of Mr Gan Thiam Poh 88 The FIDReC is an independent organisation which specialises in dispute resolution between financial institutions and consumers

Amendment Act89 will have to play important roles in ensuring that civil liability disputes will not lead to protracted litigation.

It has also been recognised that a more holistic approach is required in securing investor protection. Rules alone cannot improve the level of advice given to investors. It has been observed that financial advisers often give inaccurate advice not because of any sinister intent but because they may lack the competency to understand the products which they are selling.90 In this regard, the Financial Advisory Industry Review (FAIR) panel has made recommendations to improve the competency levels of the financial advisory industry.91 It has also been argued that the best safeguards against poor financial advice are knowledgeable investors.

With financial knowledge, potential investors are in a better position to evaluate the advice they are being given and to impose discipline on FAs to raise their standards.92 While Singaporean investors generally display high levels of financial literacy93, the financial crisis showed that efforts may have to be intensified to educate the investing public about the more exotic financial products.

On a macro level, the combination of both Product Suitability Rules and Product Disclosure Rules impose burdensome compliance costs which could adversely affect the ability of the financial advisory industry to serve investors at reasonable prices. In foreign jurisdictions, such as the United Kingdom, a worrying trend has emerged. The financial advisory industry has declared that new laws enacted ostensibly for the greater protection of consumers94 would increase compliance costs to 89 Which allows the court to take into the account the conduct of investors in resolving dispute amicably 90 Footnote No. 57. See the comments of both Mr Tharman Shanmugaratnam and Ms Foo Mee Har 91 By increasing the academic entry requirements of financial advisers and to implement Continuing Professional Development training for the purposes of updating industry practitioners on current market developments. In addition, suggestions have been made to increase the qualification criteria for senior managers in financial advisory firms. See the “Financial Advisory Industry Review- Report on the Recommendations of the Financial Advisory Review Panel”, 16 January 2013, in particular Paragraphs 1.3-1.6 and Paragraph 2.4-2.5 92 Footnote No. 57, per Ms Foo Mee Har 93 Monetary Authority of Singapore, 20 July 2005, First Financial Literacy Survey, http://www.mas.gov.sg/News-and-Publications/Press-Releases/2005/First-National-Financial-Literacy- Survey-2005.aspx 94 The legal reform is being conducted under the initiative of the

the extent that it would be commercially unfeasible to serve less affluent retail consumers. Due to this, retail investors would now need to carry out their financial planning independently.95 If a similar result should occur in Singapore, this would have the undesirable effect of depriving financial advice to individuals who need them the most.

While the abovementioned legislative amendments are a major step forward in shoring up protection for retail investors, their extensive focus on financial advisers and distribution processes arguably omit to consider the role played by financial product creators. It may seem unjust to punish the distributors and leave creators of toxic products unscathed when the knowledge of distributors themselves were also obscured by creators. With this consideration, it is now apposite to turn our attention to the Pinnacle Notes litigation against Morgan Stanley in the State of New York.

THE PINNACLE NOTES LITIGATION In 2010, a group of Singaporean-based investors initiated a class action lawsuit against Morgan Stanley (MS) in the state of New York, alleging that MS had knowingly designed Lehman affiliated products to fail with the aim of profiting from investors’ losses. MS subsequently misrepresented the level of risk involved in these products to potential distributors and investors.96 The plaintiffs opted to sue in New York, arguing that the thrust of the substantive allegations involving the alleged fraud and misrepresentations had taken place while creating the toxic product in New York. MS disagreed, arguing that there was a strong nexus of the case in Singapore, given the fact that the products had been distributed to the plaintiffs there.97 Ultimately, Judge Sand ruled in favour of the Retail Distribution Review 95 Footnote No. 57, per Ms Foo Mee Har 96 Grace Leong, The Business Times Singapore, 13 October 2011, “Pinnacle Notes Case in New York may be a Game Changer”, http://www. kmllp.com/pinnacledocs/news.4.pdf 97 DANDONG, et al., Plaintiffs, v. PINNACLE PERFORMANCE LIMITED, et al., Defendants, 10 Civ. 8086 (LBS)

plaintiffs. On the issue of Forum Non Conveniens, a key finding by the court was its agreement with the plaintiffs that the substance of the alleged fraud had occurred in New York and that evidence from staff in MS’ New York branch would be necessary in trying the suit.98 Therefore, the court placed great importance on the fact that the plaintiffs would have encountered difficulties in securing the testimony of vital witnesses if the suit had gone ahead in Singapore.99 One of the distributors of MS’ toxic products, Hong Leong Finance (HLF), has also opted to commence a suit in New York in tandem with the aforementioned class-action lawsuit. MS initiated legal action in the Singapore courts to prevent HLF from suing in New York, which the Singapore High Court dismissed. The anti-suit injunction was denied primarily because the claims by HLF were substantially similar to the class-action lawsuit and it would be more expedient for the two cases to be resolved within the same jurisdiction in New York.100 Factors of international comity also influenced the court, given that the New York courts have already assumed jurisdiction over both suits.101 With the preliminary conflict of laws issues resolved, the two trials against MS may now proceed on its substantive merits. Currently, the class action lawsuit is undergoing a discovery process to extract relevant evidence.102 It remains to be seen whether the suits against MS can succeed on their substantive merits and secure compensation for aggrieved investors.

Assuming for discussion’s sake that the New 98 Footnote No. 97 99 Pursuant to Order 38 Rule 18 of the Rules of Court, which governs procedure in civil trials in Singapore, a subpoena may not be served on any person outside Singapore’s jurisdiction in order to compel him to testify before a Singaporean court 100 Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) and others v Hong Leong Finance Ltd [2013] SGHC 83, per Belinda Ang J. See Paragraphs 59-64 101 Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) and others v Hong Leong Finance Ltd [2013] SGHC 83. See Paragraphs 35 and 81 102 Grace Leong, The Business Times Singapore, 27 January 2012, “Investor Suit Against Morgan Stanley moves Ahead”, http://www.kmllp. com/news_view.asp?id=325

York courts had declined jurisdiction, it is also recognised that a favourable Singapore judgement for the plaintiffs would be inefficacious in obtaining compensation if MS has insufficient assets in Singapore to satisfy judgement.

This article does not propose to delve into the complexities involved in the enforcement of judgements, other than to point out that Singapore has no mutual arrangement with any state within the USA103 for the reciprocal enforcement of judgements.104 In this situation, the successful plaintiff would have enjoyed a hollow victory in the Singaporean courts as he faces a protracted legal battle to enforce his judgement.

A cursory examination of the MS lawsuits therefore gives a brief overview of the myriad complexities involved when investors attempt cross-border litigation. The global financial marketplace has expanded the potential distribution channels of financial products well beyond the geographical boundaries of the originating entity. When losses are incurred, not every investor will have the requisite sophistication or financial resources to challenge the creators of toxic products. The hurdles in obtaining recourse against foreignbased investment banks constitute a shortfall in the goal of investor protection.

CONCLUSION The recent regulatory reforms in the financial landscape are a major step forward in achieving the objectives of minimizing systemic market risk and improving investor protection. However, the measures with respect to investor protection seem to adhere to the adage of “Prevention is better than 103 In particular the State of New York, a major global financial centre.See Reciprocal Enforcement of Commonwealth Judgements Act (RECJA). Judgements of superior courts in the United Kingdom are mutually enforceable under Section 3 of RECJA. Other countries eligible for mutual enforcement with Singapore courts can be found in The Schedule under subsidiary legislation titled “Declaration under Section 5” As for the Reciprocal Enforcement of Foreign Judgements Act, only Hong Kong is included in the list of countries which have arrangements for reciprocal enforcement of judgements in Singapore. See the Reciprocal Enforcement of Foreign Judgments (Hong Kong Special Administrative Region of the People’s Republic of China) Order 104 Mutual recognition of judgements between states provide a less cumbersome method of enforcing a Singaporean judgement in another country

cure”, given the extensive focus placed on adequate information provision and customer screening at the point of sale.

While the improved remedies against errant FAs are welcome, even honest and diligent FAs can be caught off guard by the volatility and complexity of financial markets. It could be argued that the ultimate fault should lie with those who create toxic financial products such as foreign investment banks. However, the obstacles involved in obtaining legal recourse against financial institutions based in foreign jurisdictions may be especially daunting for retail investors unfamiliar with legal procedure.

There is however no easy solution to these crossjurisdictional problems. Perhaps the current legal reforms are about as far as domestic laws can go to safeguard vulnerable investors. Nevertheless, in carrying out these reforms, the authorities must remain vigilant in balancing both the objectives of investor protection and maintaining the vibrancy of Singapore’s financial industry.

LAW STUDENTS WITH LIVES

by Tania Teng

University of Birmingham Law school is known for its seemingly endless hours of reading and preparation, a public speaker. They speak of a genuine passion that drives them to pursue greater heights in their respective interest areas and the delicate balancing act they engage in to continue doing what they love.

MALCOLM ONG reads law at the University College London and is the elected President of the UCL Union Film and TV Society.

It won Best Story at the Creative Video Awards in Singapore, and was placed Second at The New Paper First Film Festival. Since

Picture.

KOK YEE KEONG is a third year law student at the National University of Singapore, and loves public speaking. He has participated in both local and international moot competitions, of the Champion Teams at the 5th annual GNLU International Moot (Gujarat, India) and University of Malaya-NUS Moot (Kuala member of the Mooting and Debating Club in NUS, and holds Dramatic Arts.

JOHANNES HADI is a law student at the University College

Like a Hard Candy Virgin. Since then, he starred as Joel in Tabula Rasa, which won â&#x20AC;&#x2DC;Best Storyâ&#x20AC;&#x2122; at the Singapore Media the opening ceremony of the inaugural Summer Youth Olympics Games Opening College of Music.

Tell us about your passion and what it requires out of you.

set in a way that makes them hopefully not hate you at the end of it.

Malcolm: That question kind of answered itself passion for the art really is the key ingredient for filmmaking, though filmmaking is such a broad field that an interest in any number of things can culminate in an overriding interest to get involved in filmmaking.

Personally, I’m a bit of a gear and tech head, and always found it cool to play with various bits of equipment, or experiment with different angles and effects to see what happens. I’m not particularly into arthouse or experimental films, so I try to ensure that everything I put out is as accessible as possible. It helps that I love telling stories to my friends as well, and getting them to watch a film I’ve put together tends to be easier than engaging them in my life stories for the umpteenth time.

Yee Keong: I have a love for public speaking. It all started in 2009 when I joined Chong Pang Toastmasters Club as its Charter Vice-President of Education. I had to visit other clubs regularly to invite their members to attend my club’s chapter meetings.

I visited 2-3 clubs every week for over a year. Often, I had to rush straight from army to the meetings and even skipping dinner at times. This regular clubvisiting saw my speaking skills improve tremendously.

I was the 1st Runner-up in the District 80 International Speech Contest 2010 where I outperformed contestants from 237 toastmasters clubs.

I tend to do quite a lot of the process on my own, such as writing and editing. Over the years it has turned me into a bit of a generalist as far as the filmmaking process goes, and I think this is the aspect that could be the most intimidating at first to the uninitiated as every single part of the process is equally important to the quality of the finished film. Being a generalist also means that I’m not exactly an expert at any particular part of it, hence during edits I think I spend most of my time troubleshooting rather than actually working on the project!

Finally, I think the most important element of filmmaking is that it’s a collaborative effort - you do need people skills, as it is absolutely impossible to make a film on your own. A good part of the process involves cajoling property owners to let you shoot in their backyards for free, finding actors, and most importantly, directing actors and managing crew on

I joined the campus radio (Radio Pulze} in NUS where I was a radio DJ for a year with weekly shows over the school’s intranet. As the Radio Pulze host and the current Hosting Director, I had the opportunity to host events ranging from 50pax to 5,000pax, such as Esplanade at the Concourse, NUSSU Rag & Flag Day and Singapore Street Festival.

My public speaking inclinations naturally led me to fall in love with mooting. I am infamous in law school for being a moot fanatic. I jumped at every opportunity to moot and have participated in 12 mooting competitions thus far. Preparing for the moots was a very intense and tiring affair because the law in question was always one that I was unfamiliar with, and the research and preparation had to be done within a short period of time. Furthermore, the universe has a knack for putting all my other deadlines near the dates for submissions. To make things worse, my effort and passion in mooting was often unrequited; I have been knocked out in the first preliminary round so often that it has become an internal joke among my friends

and I. However, that did not stop me as I believe that I will only get better if I keep trying.

Besides being in love with public speaking, I have also actively sought to spread the love for public speaking to others. In 2010, I was one of the organiser for ‘Singapore Can Speak’, a nation-wide public speaking contest for youth to champion a social cause. At Chong Pang community club, I spearheaded 2 yearly programmes for the secondary schools in Yishun: a speech contest (‘Chong Pang’s Next Top Speaker’), and a communication course (‘Youth Communication and Leadership Course’). I have since trained over 1,500 students in public speaking and I find much joy in sharing with people this passion.

Johannes: Acting requires of me a great understanding and empathy with my fellow man. And I act because I feel this is the best way I am able to express creatively the profound stories that happen all around us every day. Every person has an inner narrative and has his reasons for behaving in the way he does, and the first step towards a more tolerant and inclusive society is opening our eyes, ears and hearts to these stories. And hopefully what this does is pave the way towards the realization of a common denominator that underscores all our lives, no matter what race, gender, sexual orientation, belief, or creed. I act because I believe in the profound power of stories to challenge ideas, break barriers, and change lives. I act because I believe in a better tomorrow, and in a more humane and empathetic humanity.

Was there an event that was instrumental to sparking your passion?

Malcolm: I started filmmaking properly back in secondary 3. Before that I just thought it was something cool to get into, but I met one of my schoolmates, Brian Lee Tan, who became a mentor to me at the start. It was he who showed me the ropes, and taught me the basics of filmmaking, and from there we made a bunch of films together. With him being a fair bit more experienced

“

than me, it was a baptism of fire for myself, but there really is no other way to learn apart from diving in head first and making lots of terrible films before you start discovering what works for you and what doesn’t.

He eventually migrated to the US and is working in the business full time, and I somehow managed to keep making films until today.

Yee Keong: It would have to be my admission into Toastmasters. Prior to that I always enjoyed speaking but was never really good at it. I also never knew of a place to cultivate my public speaking skills. It was only in Toastmasters that I was able to progressively improve my public speaking skills. I was always thrilled listening to seniors’ toastmasters give their prize-winning speeches. I would spend time analysing and learning from their speeches. Toastmasters gave me the opportunity to meet like-minded people who introduced me to training and I slowly branched out from there. More importantly, Toastmasters gave me the confidence to pursue many other things such as training, hosting and mooting.

Johannes: Not at all. Acting is really something I stumbled into bed with and woke up the next morning realizing that this was something I would be grateful to keep doing - in some capacity or other - for the rest of my life. I joined the drama club at ACS (Independent) because I dropped out of the chamber orchestra and had no other CCA to join. But I think it was really when I left ACS and joined W!LD RICE that acting took up the central place in my life that it occupies today. The training there was tough and life-changing, and the work was uplifting and significant. I also had the privilege of getting to know some of the most gifted and inspirational people in the local industry today. I feel that the passion I have today is fuelled by an awareness of the greater societal impact of the work I undertake with my fellow artists and their work and lives inspire me to keep giving more of myself.

The passion I have today is fuelled by an awareness of the greater societal impact of the work I undertake.”

-Johannes

Do you ever feel like it’s impossible to balance law school and filmmaking?

Malcolm: That depends on how well you want to do in school - ha! On a more serious note, I suppose it gets overwhelming at times, and in my second year at law school, I definitely took studies more seriously.

Consequently filmmaking did take a backseat. In the past year I did mostly simple projects, or took a secondary role in a couple of more ambitious productions, with the object of placing my studies first.

It wasn’t helped by the fact that I was also President of the Film and TV Society this year, meaning that I had to juggle both school and making films with the more mundane administrative tasks that running a society involved. While it wasn’t the most creatively satisfying year, I’m glad I managed to keep making films, and I’m really hoping that next year will be much simpler school-wise so that I can spend time on pursuing more ambitious personal projects - I’ve already got a few potentially lined up!

Yee Keong: Yes certainly. As can be expected, my various activities were very time consuming and required some serious time-management. As mentioned, many of my deadlines also tended to fall very near in time with each other. There were times I had to sacrifice sleep or to skip lessons. Sometimes I get very demoralized when my effort does not yield any result, e.g. being knocked out in mooting competitions and Toastmasters speech contests. However, I have never regretted nor despaired. Because I genuinely enjoyed all my activities I always managed to find the strength and motivation to keep going.

Johannes: Well, for starters, if you’re going to do everything by the book and prepare for all your lectures and tutorials and do all your readings, then it’s nearly impossible to not be utterly consumed by law school.

And of course there were many times I felt like I had far too many things on my plate and that balancing everything was going to be an insurmountable challenge. But I found what helped me prevent my perspective from becoming too myopic was to keep my focus trained on my broader education in London as a whole. When I first came to London, I quickly realized that much of my education would take place outside the classroom and outside of the set syllabus. And remembering this helps me to keep pursuing projects outside of law school that I feel would contribute to and benefit my long-term aspirations.

What is your motivation for pursuing your passion while at law school?

Malcolm: It’s a whole lot more interesting than reading statutes. While it can be an incredibly strenuous

process to make a film, and there were many times this year that I absolutely questioned my drive. However it’s definitely very satisfying to be able to stand behind a finished product. Further, in the past year or so I’ve been focusing on making music videos as I really like discovering new music, along with the creative freedom that making a music video offers over a standard narrative short. This has led me to meet a lot of cool people, discover some amazing new bands, and I’m definitely keeping my fingers crossed that all of them go on to become the next Coldplay!

Yee Keong: I can’t explain or rationalize my love for public speaking. It is just this immense satisfaction I get when I manage to connect with the audience/students/ judges. Each time I speak before a crowd, I always feel a searing gush of thrill and excitement coursing through my veins. Perhaps it is my lust for limelight or the need to be heard that draws me to public speaking.

Public speaking makes me happy.

Do you find that your passion and law school are complementary in any way?

Malcolm: Yes and no. Yes because some of the cases that we do, especially in Tort and Criminal Law, are so ridiculously entertaining that they are a veritable goldmine of ideas for future films. Further, I think it’s probably safe to assume that most of the people who successfully make it through law school will eventually go on to become the 1 percenters, so if I ever pursue this full time, maybe I’ll have a host of wealthy patrons as my friends?

And the two are not really complementary because law school teaches you the reality of the legal troubles that the most innocuous things could entail. I used to go about making films in really haphazard ways, straying into private property, placing people in extremely dangerous situations temporarily, etc. But law school made me realise the number of times that I could have been sued as a result of how I did things. I still do things that way to some extent, but I am definitely more careful now. While this is in a way a positive development, anybody trying to make a good film should have his head in the clouds to some extent because that way, he cares only about what will end up in the final cut. It will not be about how precarious the ladder that he’s currently standing on is, and how expensive the uninsured rented camera he’s holding really is.

Yee Keong: Oh yes definitely. The gift of the gab, the rehearsed confidence and the ability to communicate effectively with the audience are all essential qualities of a lawyer, or a good litigator.

Johannes: Very much so. I see the law as a far greater concept than its literal black-letter. The law, to me, is a societal construct and phenomenon that reflects and embodies our shared conceptions of rights, liberties, freedoms, and values, and our shared aspirations for the overall progress of our society. And the subjects that interest me in law school very much coincide with my artistic motivations. In the lecture theatre, I find the study of the relationship between governments and their citizens compelling, and the philosophical theory and practical realities of the human rights in our world today engaging. And these issues are the same as those that trigger and inspire me when I am in the other theatre.

Do you think you would still carry on the pursuit of your passion once you enter the working world?

Malcolm: I guess that boils down to a multitude of questions, such as what job I find myself working in future, and how well I do in school. I’m quite confident that I will find some way to get involved in making films somehow, regardless of what I wind up doing.

The big question is in what capacity.

Yee Keong: Yes most definitely. But the intensity would have to vary according to the workload.

Johannes: Definitely. Although I would also like to challenge the implication that “entering the working world” is incompatible with the pursuit of one’s passion, I believe that it is possible to make what you love your life’s work, and I would very much like to believe this extends even to unconventional or, as we Singaporeans love to say, “impractical” aspirations and motivations.

knocking on anyone who leads a more ‘traditional’ Singaporean overseas experience - I am definitely disappointed about the number of things I’ve missed out on, but I think it all comes down to finding a balance, discovering your passion, and meeting likeminded people who can spur you on in pursuit of it.

Yee Keong: There is a saying that goes “you gotta like what you do”, but I think this is incorrect. We should instead be trying to do what we like. I always believe in pursuing one’s interests. It is only then will we be willing to put in our utmost effort to improve and to excel in what we do. Law school is a very competitive environment and we need to constantly remind ourselves that life is not a rat chase. If you are not chasing your dreams, others will hire you to build their own dreams. If you are not doing what you like, you are not living life. Therefore start living in law school.

Do something that you will look back on fondly 10 years down the road. I guarantee you studying will not be one of them. But of course, do everything in moderation and be realistic.

Johannes: Well first have a think about whether your passion and law school are really that divergent at all, or if you can find some common ground that explains your motivations for both. If you can find a personal reason that drives you in both fields, then you’re already one step closer to realising that it is possible to love the work that you do and make that work your life.

In the meantime, study smart and learn to prioritise the things that are important to you. Everyone has 24 hours each day, and the only advantage you can gain here is how and on what you spend this time. Also, keep a broad and open perspective on education that includes more than grades and classroom honours, and never be afraid to go after the things you know you love or want to do.

Do you have any concluding remarks or advice to other students in similar predicaments, but finding it hard to pursue their passions while in law school?

Malcolm: Join a society and get actively involved, and make friends with people who are proficient in whatever field you wish to pursue. You need to find that one guy who’s basically exactly like you, but doing ridiculously good things, so that you feel bad whenever he puts something out and you’re sat on your butt scrolling through the adulation he’s receiving on facebook/youtube/twitter. I think it’s natural for students overseas to want to travel as much as they can over reading weeks and holidays, but that’s something I did sacrifice to a large extent in order to pursue this. Consequently I’m a pretty pathetic excuse for an overseas student - the number of stamps in my passport is shockingly low, and my flatmate has been annoyed more than once that I couldn’t join on any trips because of film commitments I’d made. This isn’t

“

Start living in law school.

Do something that you will look back on fondly - Yee Keong

RESPONDING TO RECENT DEVELOPMENTS The Court of Appeal has ruled that the prime minister does not have “unfettered discretion” over when and whether to call a by-election.

What do you think the wider implications of the decision are?

Samuel Tay, University of Bristol The watershed decision sends out the right message that the judiciary serves and is willing to serve as an important check against any improper exercise of power by the government. The lack of a fixed statutory time-limit as to when a by-election should be called can be remedied by a stringent approach toward the ‘convenient speed’ test in s.52 of the Interpretation Act (Cap 1, 2000 Rev Ed).

This will ensure that a proper balance between the rights of the voters and the discretion afforded to the Prime Minister is maintained.

previous High Court’s decision on the prescribed time within which such elections must be called, rejecting the idea of having no prescribed time frame and instead replacing it with ‘within a reasonable time’. However, the implications are not drastic since the PM’s powers are still left intentionally broad. This discretion in decisionmaking is subject to the court’s powers to intervene in ‘exceptional circumstances’. Ultimately, it is a delicate balancing act between the prerogative of the PM and the voters’ right to representation, one which we may see being refined over time.

Yu Jie Wu, University of Oxford Is there a difference between stating (A) that the Constitution limits executive authority or (B) that the Constitution alone provides that authority? In the press, counsel for the appellant has described the decision as “circumscrib[ing] the Prime Minister’s executive authority.” The AttorneyGeneral’s Chambers has responded stating that no authority is ever “independent of the Constitution or legislation”. In the present case, the effects of each may be identical. However, the distinction is still instructive. View (A) depicts powers that are defined negatively by other branches of the State, for example, the Monarch’s prerogatives in the United Kingdom. In Singapore, view (B) is the more accurate description. That the vocal segment of popular opinion seems to subscribe to (A) is revealing and may be, for some, worrying.

Yi Fan Chan, University of Warwick The Court of Appeal acknowledged in its judgment a citizen’s constitutional right to Parliamentary representation and defended said right by ruling against the Prime Minister’s “unfettered discretion” over calling a by-election. The Court thus lays down a strong precedent of protecting the constitutional rights of the people, especially in cases wherein the executive’s legislative mandate is ambiguous. The ramifications of the judgment also extend beyond the legal spectrum as, in an era of change, the Judiciary demonstrates itself to be a resolute overseer of executive action and therefore strengthens the legitimacy of the nation’s democratic processes.

Tania Teng, University of Birmingham The Court of Appeal decision clarified the

Maryam Hasan, London School of Economics and Political Science The ruling has done little more than to reaffirm existing restrictions on executive power exercised by the prime minister. Conduct and comments by the prime minister in the past suggest that there

has always been an explicit acknowledgement that the decision to call a by-election, when a seat in a single-member constituency is vacated, is not simply subject to the whims and fancies of the executive. The ruling by the Court of Appeal has thus barely altered the status quo, but serves instead as means of clarifying ambiguities in legislation. The prime minister has always had regulated discretion over calling for a by-election, and will continue to do so.

Jocelyn Teo, University of Cambridge The fact that the Court of Appeal was willing to consider such a constitutional challenge indicated the court’s growing receptiveness towards scrutinizing the interpretation of statutes, and ensuring that Singapore’s governance is carried out in accordance with the rule of law. I believe that this increased receptiveness for judicial review is to be welcome, for it allows for an examination of contentious issues such as Section 377A of the Penal Code and media freedom. Although Mdm Vellama’s appeal was dismissed since she did not have standing after the Hougang by-election was called, it was encouraging to note that costs were borne by the respective parties, ensuring that the costs to bring constitutional challenges in the public interest would not be too prohibitive.

Sukania Prem Kumar, Queen Mary, University of London The hard truth is that the Prime Minister still possesses discretion when deciding by-elections.

While the Court has declared the discretion to be not ‘unfettered’ through the guarantee of judicial intervention, the guarantee itself is limited to being exercised in exceptional circumstances.

These circumstances are as vague as the ‘within a reasonable time’ period, which is still decided on by the Prime Minister. While Madam Vellama’s call for democracy is honorable, the ruling does not create any paradigm shifts as it is still a testament of the Prime Minister’s discretionary power, albeit sugar-coated.

Marcus Tan, University College of London The immediate consequence of this ruling is that the court has clarified the law and dispelled media myths that a by-election must be ‘automatic’

or ‘immediate’. The judgment also highlighted a fundamental democratic element in our nation: the important fact that Members are representative of the people. In this vein, I believe the court struck a right balance between citizens’ democratic interests and the Prime Minister’s (PM) necessary consideration of various factors related to national interests when deciding when to call for a by-election.

In principle, this ruling reminds us that the PM’s role and decision-making powers will not go unchecked and must be exercised reasonably.

This is an affirmative feature of the rule-of-law. In practice, some may still contend that ‘reasonable time’ continues to give room for legal manoeuvre.

Rebekah Lau, University of Manchester The ruling by the Court of Appeal is definitely a step in the right direction with regard to upholding the principle that there are no unlimited powers or unfettered discretion under the rule of law. The decisions that a government or a prime minister makes are extremely crucial towards the wellbeing of its people, and they should seek as far as possible to always be accountable and transparent in their decisions. This case may thus be the starting point towards showing Singaporeans that they do have a right to challenge government decisions with regard to constitutional matters in upholding their individual rights.

Desiree Lim, King’s College London The Court of Appeal’s clarification of Article 49 of the Constitution has affirmed the significance of the rule of law in Singapore’s Constitution by placing limits on the discretionary powers of the Prime Minister. The judgment is a positive signal for the future of Singapore’s democracy.

That said, the Prime Minister’s actions thus far are not unconstitutional because the law does not necessitate an immediate by-election but rather, sets out the boundaries in which the Prime Minister is allowed to exercise his discretion.

Though the Court of Appeal has not defined what a “reasonable time” to call for a by-election might be, that could possibly arise as a constitutional convention or another issue for the court’s clarification in the future.

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