The Singapore Law Review

Read the pdf version of this issue: Juris January 2007.

From the Chief Editor:
One of the most exciting legal developments in late 2006 and early 2007 has to be the proposed amendments to the Penal Code.

I am certain this will be something of interest to most law students, as we have spent many engaging hours debating passionately with each other and our lecturers/tutors over various issues in the Penal Code. Now that the month-long public consultation exercise has concluded, I am definitely looking forward to the parliamentary debates on these proposed amendments.

The objective of the proposed amendments is to make the law more relevant within the context of today’s social and crime conditions, keeping in mind the need to continue maintaining a safe and secure society.

Public feedback is one important way of ensuring that this key objective is achieved. The Straits Times reported (“Feedback focuses on sex laws”, 13 Dec 06) that the government received 252 responses from individuals, groups and some lawyers during the official feedback period.

The Penal Code is the foundation statute of Singapore’s criminal law. As such, the feedback received should arguably have been much greater. One way of increasing public feedback could be to widely publicise the public consultation exercise through various media channels. In Hong Kong SAR, for instance, public feedback on proposed amendments to significant legislation is publicised not only online, but also through the mass media. In particular, advertisements are regularly broadcast during prime time television viewing hours to alert the public to the proposed changes and feedback exercise.

Greater public contribution to and engagement in the Penal Code amendment process would arguably help create more comprehensive and socially relevant laws to better serve the criminal justice system and the people of Singapore.

On another note, the Singapore Law Review is kicking off the new school semester with a Writing Competition and Symposium, with fabulous prizes sponsored by TS Oon & Bazul. More details can be found on the SLR website, emails and on posters around BTC. Write and Win!
Maureen Poh

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It is not often that Singapore appears on the front page of Slashdot, a news site for tech-savvy Internet users, but when news of a 17 year old being charged for the crime of stealing his neighbour’s wireless Internet access was reported, readers protested at what some see as a “draconian” law coming from a “fine” country. Sympathies poured out for an act that did not seem like a crime, or one justifying three years of jail and a hefty fine, not to mention a criminal record. Wireless Internet is, after all, abundant. Your laptop might have been programmed to automatically connect to an open network whose “openness” might be a subject of grave doubt. Does that make you a criminal? Excuse me, switch off that laptop before you get into trouble; there is liability in the air.

What infuriates this technologically informed writer is that the steps to take to protect your network from intruders are simple –- if you understand what a password is, you are almost there. However nothing is truly secure as long as it is connected to the Internet and accessible to millions of people as much as it makes millions of people accessible. Any tool available to a home user with better things to do than toy with his computer all day can be breached by a determined hacker, and the consequences can be dire for this victim. Not only is his private information in danger, he could suddenly find himself liable for crimes committed on his network. There is therefore, a community interest to deter intruders from entering a private network. A simple analogy settles this – opening a window in your home to enjoy some fresh air is not an invitation for a robber to climb inside and steal your belongings.

Criminal law is not an end to itself, and as interactions between people change with technological advances, the law should change in tandem. What is or not a crime similarly changes over time and varies from person to person. It is heartening that the Penal Code and other laws are reviewed regularly, but when it is to be applied, some questions must be considered before punishment is meted out to an individual. Whose interests are we protecting? What kind of behavior are we trying to deter? A law cannot also impede the functioning of society or deny us the benefits of technology; it would be against the interests of the community. Its relevance is not based on the usefulness of the law per se, but its usefulness to the wishes and demands of our society in general.

Even when we do not believe our actions can actually affect others, most of the time they do in our closely connected society. Whether the law of criminal liability should be applied to all of them is a separate fine line. An open window entices the curious – should we then kill the cat?

Ang Hou Fu is a first year law student and an associate editor of the Singapore Law Review. – Juris Illuminae Vol. 3 Issue 3 (January 2007)

Arguably, extra territorial jurisdiction affronts the right of sovereign nations to govern their own affairs. The issue is not whether these nations are able to enforce their own laws but rather whether they see fit to even declare a pursuit or activity so socially objectionable as to designate it as a crime. If their society does not, how is it justifiable for another nation to ‘legislate’ that such activities are not to be performed in that country, albeit applying only to their citizens? In the particularly emotive area of child prostitution, the justification for such laws may be the perceived duty to protect minors overseas from a country’s own citizens. The changes to the Penal Code would hold Singaporeans and permanent residents (PRs) who engage in what would constitute child prostitution crimes in Singapore liable for the same acts perpetuated overseas, even if they are not in violation of that country’s laws. Such laws are hardly radical and have already been implemented by countries including the United States, the United Kingdom and Australia.

The proposed changes have not escaped criticism. While the moral justification for such legislation is unassailable, it is often said that the unenforceable law is bad law, and even at its conception it has been admitted that enforcement of these laws would be extremely challenging. The difficulties in locating victims pale in comparison with getting them to testify against offenders, as prostitution is very different from rape. In the face of its questionable utility, are we enacting a possibly impotent law, having been pressured onto the bandwagon? While international and domestic pressure may have contributed significantly to its implementation, the changes indicate that the law is maturing. While retaining its primary deterrent and punitive function, it now also takes on the role of a more passive articulation of the standard expected by Singaporeans of Singaporeans (and PRs) overseas. In this context, an impotent law may not be redundant.

It would be missing the purpose of these laws to suggest that they are redundant. As suggested above, these laws serve an unconventional purpose. They hold out to the world what Singapore expects of its members. While political rhetoric may achieve this, it is submitted that it is more effectively performed by the law because a society’s laws are fundamentally a manifestation of its shared beliefs and in this case, ethical expectations. The significance of making an activity illegal cannot be understated. Any criticism that these laws are merely political rhetoric cannot stand in this context, for it is much more than that. Ultimately what the new laws would do is unequivocally proclaim that we as a nation deprecate child prostitution as immoral and socially aberrant, so much so that we make it a ‘crime’ even when it is committed outside of Singapore’s jurisdiction. That is the most that any society can do and it is submitted, in this context, that we must do no less.

Kenneth Chua is a first year law student and an associate editor of the Singapore Law Review. – Juris Illuminae Vol. 3 Issue 3 (January 2007)

Muhammad Aidil
The proposed repel and re-scoping of s.377 decriminalises anal and oral sex done privately between consenting adult heterosexual couples aged above 16. However, homosexual acts, even when consented and done privately, still remain to be criminalised (s.377a). I will argue that there is a strong jurisprudential basis for the continued criminalization of homosexual acts.

It is recognised that modern society is more liberal now than ever. Therefore, assuming that most in society are at the very least indifferent to homosexual relationships/acts conducted privately, why should the law still criminalise homosexual acts? The answer lies in the simple proposition that in Singapore, due to our multiracial social fabric, legal paternalism rules and that there is no distinction between private and public morality – therefore criminal law can legislate on all matters concerning morals. That seems to be the jurisprudential basis of s.377, s.377a and other sections such as those dealing with incest and suicide.

This legal paternalism is particularly important in Singapore for internal and external reasons. Internally, our multiracialism and multi-religiosity form the fabric of society. Here, where a large part of its population subscribe to faiths that outlaw homosexual activities, it will be worrying if the government legalise homosexual activities. Externally, Singapore is essentially a non-Muslim state in a Muslim dominated region. I shudder to think of the effects of legalizing homosexual acts – I hardly think that our leaders intend for Singapore to be a “gay hub” where gays from Asia start to converge on a sunny gay-friendly island surrounded by conservative countries. This begs another question –- what gives our leaders/society-at-large the right to judge on matters of morals? Quite simply, society has an impliedright to ensure its continuance and cohesion.

In the absence of a realm of private morality, there must be some sort of shared morality or value-system that is common to all of us. That is the very basis on which we legislate our criminal laws and, more fundamentally, on which our society retains its communal cohesiveness in the face of individualism (of legal rights). Further, it is submitted that there is a need for individuals in society to be protected and that is one of the many functions of criminal law. This is evidenced by Parliament’s criminalization of otherwise “private acts” such as incest, suicide and euthanasia.

Gay rights activists tend to assert their unalienable right to have sex because (1) it is done privately and (2) it does not harm anyone because it is consensual. However, if their assertion of such rights is taken to the extreme, there is simply nothing to stop them from advocating that Singaporeans ought to have the right to commit incest, bestiality or necrophilia. After all, such acts (1) are done privately and (2) can be consensual.

In view of that, the better view is to leave the judgment of moral matters to our elected legislature based on a sense of morality that is common to all of us. Therefore, the government’s retention of s.377a is a clear and unequivocal signal that society in Singapore is still governed by “majoritarian” morals and values to which individual rights are subordinated.
Aidil is a first year law student and an associate editor of the Singapore Law Review.

Emily Choo
As the government has “sought to modernise [the law] to be in line with social mores and emerging societal trends”, a number of changes have been made to the Penal Code. One such change has been the re-scoping of s.377. It is interesting to note that in the consultation paper put forth, it was stated that as part of this re-scoping, the ‘archaic term “carnal intercourse against the order of nature” will be removed.’

The use of the word ‘archaic’ definitely points to a sincere desire by the law to progress with society. It is laudable that our government recognises that some laws are no longer relevant to our times and is trying to meet contemporary societal needs. However, the actual changes made, at least with regards to s.377, is a pitiful and half-hearted attempt at change.

The changes to s.377, relevant to the focus of this article, are as such: “anal and oral sex, if done in private between a consenting adult heterosexual couple aged 16 years old and above, would no longer be criminalised.”

At first blush, it appears that the law has indeed taken one big step forward; now we are no longer bound by draconian views of sex. However, this step seems to be mere patronizing by the government: how can we justify limiting the rescoping to just heterosexuals as being progressive?

Firstly, such acts are to be limited to the privacy of the bedroom. Since it is to be private, why are only heterosexuals allowed their privacy? Would homosexuals having sex in private lead to a global meltdown? Perhaps, homophobes and conservatives might argue that allowing homosexual acts would lead to the erosion of social morals and the government fears offending their sensibilities.

However, I would like to point out that the idea of privacy means that people do not intrude into your life. I find it strange that the mentality of one group should affect the lives of another, why should we care what people get up to in their own bedrooms, as long as no one is hurt? First we invade people’s privacy, then we charge them in court; do we not have our own lives and better things to do?

Another question to ponder is that if consent is needed, why does the consent of two homosexuals not count? It is laughable that the consent of a 16 year-old hormonal heterosexual is held to be of greater value than that of a homosexual adult. This double standard is both unjustifiable and offensive.

In short, the changes to s.377 should be pushed further. We should not be stuck in limbo –- recognising that our laws are archaic, but refusing to make the changes which truly matter.

Emily is a first year law student and an associate editor of the Singapore Law Review. — Juris Illuminae Vol. 3 Issue 3 (January 2007)

In this special interview, the President of the Association of Women for Action & Research (AWARE), Ms Tan Joo Hymn, shares with us AWARE’s position on the recent Penal Code amendments.

Q: AWARE has declared its position on the amendments to the Penal Code. Echoes of similar sentiments have also been heard from the community. Overall was it a welcomed development?

AWARE welcomes the proposed amendments to s. 375 and s. 376 of the Penal Code. As these proposed amendments are happening years behind other countries, we suggest that the strategy is not to adopt a cautious and conservative small-steps-forwards approach, but to boldly implement what is necessary to bring Singapore in line with the international community, not to mention many of its citizens. No doubt, the proposed amendments would open the door for some wives to seek redress, namely, wives who have (1) obtained a decree of judicial separation; (2) obtained a personal protection order; or (3) obtained an injunction against her husband restraining him for having sex with her. However, it leaves vulnerable the far larger numbers of women who have experienced marital breakdown or violence but have not yet taken steps to obtain a protection order. The Consultation Paper contains a preamble “Given the changed status of women and the evolving nature of the marital relationship…” it would seem alarming that the status of women have only changed to the extent that she may refuse sex from her husband only in circumstances of marriage breakdown (judicial separation) or violence.

Q: This particular amendment to S375 has sparked much debate among the community and due to the nature of the matter, the most vehement views were expressed by organizations or individuals labelled as “feminists”. Is it necessarily a lone battle?

The people that we have spoken to, men and women, support the lifting of the marital exemption. Many people in Singapore today believe in gender equity, and therefore can be considered “feminists”. The more vocal and self-proclaimed “feminists” would of course campaign harder. Generally speaking, the ones most personally affected tend to be the most vocal, e.g. survivors and families and friends of survivors would campaign hardest for cancer support and awareness even though many in the general population may support such an initiative.

Q: Is the amendment to s.375 likely to be effective for the specific group the change is targeted at?

For any law to be effective, there needs to be public awareness and education.

Q: What are some of the initiatives that AWARE will take to help ensure that the amended marital rape law achieves its best possible result despite some of its limitations?

AWARE does not yet have anything planned at this stage.

AWARE also calls for the repeal of s.377A in line with the repeal of the relevant portions of s.377.

Rape is an instinctively appalling word. However, add a “marital” in front of it and the phrase instantly becomes less so and may even appear self-contradictory at first sight. The reason behind this lack of chemistry between the two words is simply that most people will not expect the latter to happen in the context of the former.

The foundation of a marriage is consensual love and it is counter-intuitive when this does not translate into consensual sex between spouses. It is the assumption of the current law that the long arms of the law should not reach into the closed doors of the bedroom.

Under Section 375 of the Penal Code, a man cannot be penalised for forcing himself onto his wife although the same act by a stranger would have made him a criminal. The immunity to marital rape originated from eighteenth century England but was subsequently abolished in 1991. Now Singapore has played catch-up but only after more than a decade and making only a partial attempt in removing the legal immunity for marital rape.

The amendment to Section 375 of the Penal Code states that no man shall be guilty of an offence against his wife, who is not under 13 years of age, except where there was an injunction, a court order or the spouses were living apart.

The stark fact of the partial abolishment is that it would only protect the women who have filed for a divorce or applied for a protection order from the court. In this way the law effectively protects those who need the protection least as most of the victims who suffer from sexual abuse by their husbands are either weak, financially dependent, worried about their children or simply do not have the means to apply for an injunction.

Further, the proposed change does not address the root problem of immunity against rape but rather renders it masked in a narrower sense. The main argument against the presumed conjugal rights of the husband is that marital rape is no different from rape that is normally criminalised. Victims of martial rape can be equally or even more traumatised due to the daily fear and a greater sense of betrayal. By instituting that women take a proactive stance in order for them to be protected by the law would be as good as saying that one needs to pay before he can prevent himself from being slapped.

Our Asian values may define our traditional notions of marriage but should not be an immunity shield for abusive husbands. A fear of floodgates opening once the exemption for the husband is totally removed is unfounded since charges of martial rape is rare given the difficulties for the wife. When violence and coercion set in and the aggressor becomes no more than a stranger, presumed consent is as meaningless as it can get.

Tan An Qi is a first year law student and the Deputy Juris Editor. –Juris Illuminae Vol. 3 Issue 3 (January 2007)

In November 2006, the Ministry of Home Affairs released a draft Penal Code (Amendment) Bill along with a Consultation Paper on the proposed amendments. The MHA invited public feedback on these proposed amendments which if successfully tabled in Parliament, will be the most extensive change made to our criminal legislation since 1984.

The proposed amendments cover a wide range of offences — they seek primarily to expand and modify existing offences, introduce new offences and repeal certain offences. Changes have also been proposed to the current sentencing levels of certain offences and to the penalties for newly created offences.

SEX-RELATED OFFENCES

The proposed amendments in this category appear to be due to changing social norms. A liberal approach can be detected, and there is also recognition that certain groups of individuals require greater protection by the law.

Carnal offences
The current s.377 has often been criticised for the vagueness of the term “carnal intercourse against the order of nature”. The amendments would see the repeal of s.377 entirely, re-scoping the realm of such offences.

With this repeal, oral and anal sex between consenting adult heterosexual couples would no longer be criminalised. For the acts of bestiality and necrophilia (which are encompassed within the current s.377), separate sections would be enacted dealing specifically with these offences. A new offence of sexual assault by penetration would be introduced. This coversnon-consensual penetrative acts such as oral and anal sex using the penis, or any other body part or object. This is necessary due to the decriminalising
of oral and anal sex.

Marital rape
Currently a husband enjoys marital immunity if he engages in non-consensual sexual intercourse with his wife (aged 13 years and above). Given the “changed status of women and the evolving nature of the marital relationship”, it has been proposed that this immunity be taken away. This would however, occur only if certain prescribed conditions are met, i.e., the spouses are living apart or if the wife has an injunction or protection order against her husband.

Minors
Several proposals have been made with the aim of protecting minors from sexual exploitation.

1. For outrage of modesty under s.354, higher penalties would apply if the victim is below 14 years of age.
2. Sexual penetration of a minor below 16 years of age would be an offence regardless of consent.
3. For the new offence of sexual assault by penetration, the offender is subject to a minimum jail sentence of 8 years and at least 12 strokes of the cane, if the victim is below 14 years of age.
4. It would be an offence to obtain or takes steps to obtain the sexual services (for consideration) of a minor below 18 years of age under s.367B.Singaporeans or PRs who perform such acts are also liable under s.367C and subject to the same punishments.
5. On a similar note, s.367E protects persons with mental disabilities from being exploited sexually. The rationale is similar for like minors, they are vulnerable due to a lack of mental capacity.

OTHER CHANGES

While the amendments attracting the most public attention are the sex related ones, significant changes to other important aspects of the criminal law have also been proposed.

Unlawful assembly
The current s.141 falls under the group of offences relating to public tranquility. The proposal is to make clear that an assembly of 5 or more people would be an unlawful one if the aim is to commit any offence and not just one relating to public tranquility.

Religious and racial harmony
In light of the recent incident of the racist bloggers, the current s.298 is to be expanded to include the “wounding of racial feelings” of any person. The new s.298A also deals with individuals who attempt to cause disharmony between groups on the grounds of race or religion. This would provide a more appropriate alternative to the Sedition Act in such matters.

Electronic crimes
Due to technological advances, the proposals include expanding various offences to include their commission via electronic mediums. Examples are s.292 (sale of obscene books) and s.499 (defamation).

Fines
Fines in the Penal Code were last increased more than 50 years ago. In order to adjust the levels to today’s standards, it is proposed that fines be increased by a factor of 3, based on the Consumer Price Index (CPI). For offences where greater deterrence is desired, the fines may be increased by an even larger factor.

It was stressed that an increase in jail sentences and caning was avoided, and only the maximum fine levels would be increased. Judges therefore are not compelled to but have the discretion to impose a higher fine where they deem fit.

Due to the immense scope of the proposed changes, only the more significant proposals have been mentioned. For more details please refer to the following website: http://www.reach.gov.sg/olcp/asp/ocp/ocp01d1.asp?id=3683.

Kishan Pillay is a third year law student and a senior editor of the Singapore Law Review. — Juris Illuminae Vol. 3 Issue 3 (January 2007)

As of 5pm, Friday 19 Jan 2007, submissions for the writing competition have closed.

Names of the short-listed participants will be released next week (week of 22nd January). The short-listed participants will then proceed to present their papers at the Symposium, which will be held in the week of 12th February.

A small error seems to have downed the website for a short while. For those who visited this site during the downtime, apologies. We’d be restoring as much of the website as soon as possible.

A first priority however, would be to provide the SLR Competition Rules and Regulations and SLR Competition Entry Form (for those who cannot access their emails or any other stranger reason) for the SLR Writing Competition and Symposium. Click on the links for them.

Don’t let our problems stop you from writing! Here’s an administrative check-list for those finishing their work:

• The Deadline for submissions is 19 January 2007 at 5 pm
• 3 printed copies of the essay should be submitted to Mailbox 1251 (4th floor, Block B) before the deadline. A completed entry form (SLR Competition Entry Form) should be attached as a cover page to each copy of the physical essay submission. The copies should be placed inside an envelope labelled with the name and matriculation number of the entrant.
• 1 Microsoft Word Document containing the soft copy of the essay should be sent via email to writingcomp@singaporelawreview.org
• If you need more motivation, you might want to take note of the prizes: The winner of the Singapore Law Review Writing Competition and Symposium 2007 will receive $1000 in prize money. The 1st runner-up will receive $500, with the 2nd runners-up each receiving $250. The remaining short-listed finalists will also receive a consolation prize of $100 each. The short-listed finalists will have an opportunity both of enjoying a paid internship at the sponsoring firm, TS Oon & Bazul. Short-listed entries will also become the property of the SLR and have the opportunity of being published in the Singapore Law Review Journal.

Refer to the SLR Competition Rules and Regulations for more information, conversely you may read the rest of the entry as reference (the information provided below is not a substitute for the official document, which is linked above). The SLR Writing Competition and Symposium 2007 is proudly sponsored by TS Oon & Bazul. (more…)