The Singapore Law Review

THAM CHANG XIAN
First Year NUS Law

Tokenism or not, the lifting of the restrictions on the Speakers’ Corner in Hong Lim Park is indeed a watershed event. The baby steps towards a freer means of expression have been taken, and this can only be a good thing. The journey of a thousand miles begins with a single step and these small shuffles represent at least an intention of moving in the right direction.

The irksome part however is still the not-quite-invisible hand of the government pulling the marionette strings, despite the transfer of control from the police to the National Parks Board. It is one thing to limit the topics of protest for the purposes of “public order”, but to think that Singaporeans are unable to discern the wheat from the chaff is eyebrow-raising to say the least. After all, what is the use of all this education if we could fall for the ruses of quacks selling snake oil?

Hyde Park’s Speakers’ Corner is a free for all, where onlookers may heckle the speakers for all their worth. Without the internet’s Harry Potter cloak of invisibility to hide behind, onlookers can see for themselves the faces of the brazen few (if any) who would dare make inflammatory remarks. It would take much guts (and indeed a few shooters) to believe oft repeated rhetoric that has been rendered blasé by a certain postage pinching individual. Singaporeans in all our pragmatic glory do not suffer fools easily, and irrelevant or irreverent renditions would sooner be swept out than allowed past the door threshold.

Let those who have something to say take the stand (or mound in this case) and make their case. The public will not be so easily swayed by rustlings in the grass.

A case commentary on Mercurine Pte Ltd v. Canberra Development Pte Ltd [2008] SGCA 38.

MUHAMMAD AIDIL
Third Year NUS Law, Deputy Chief Editor, SLR

Uniquely Singapore. Or so it seems in Mercurine, where the Court of Appeal (“CA”) departed from its stricter “real prospect of success” test to one which asks whether the defendant can establish a prima facie defence in that there are triable issues -an approach that differs from other common law jurisdictions. The facts of the case are straightforward. The respondent obtained an O13 default judgment against the appellant who failed to enter appearance. 15 months passed before the appellant applied for the default judgment to be set aside. The Assistant Registrar granted the application but this decision was reversed by Prakash J in a Registrar’s Appeal who reinstated the default judgment. The appellant appealed to the CA, which varied the judge’s order and held that the default judgment would be deemed to be set aside if the appellant succeeds in another consolidated suit.

But the law, it seems, was far less straightforward.

In Mercurine the CA departed from its decision in Abdul Gaffer v.  Chua Kwang Yong [1995] 1 Sing. L. R. 484, which applied the stricter “real prospect of success” test enunciated in Saudi Eagle [1986] 2 Lloyd’s Rep 221. The CA reverted to the test established in a time-honoured English case of Evans v. Bartlam [1937] AC 473, i.e. whether the defendant can establish a prima facie defence in that there are triable issues. While the merits of a defence is a highly significant factor in itself, the CA held this must be assessed against other considerations.  The burden is on the defendant to show that he has a prima facie defence.

This decision must be correct because for a court of law to delve into the question of whether a defence has any “real prospect of success” would be to pre-judge a case without having the benefit of full evidence which can only be adduced in a trial. However, what is unclear is the exact threshold level of a prima facie defence qua an application to set aside a regular default judgment.

While the CA alluded to the threshold for a defendant in an O14 summary judgment application, it is clear that the analogy is not complete. If the threshold is indeed an O14 one, would it mean that the principles of whether an O14 application should be granted can be applied to the setting-aside-of-default-judgment context?

If that is the case, the plaintiff, in order to sustain the default judgment, would have to show that the defendant does not have a “fair or reasonable probability of having a real or bona fide defence” (negative proposition of Goh Chok Tong v. Chee Soon Juan [2003] 3 Sing. L. R. 32).  However, this is a higher threshold than a mere “prima facie” defence.

To set aside an irregular default judgment, the CA affirmed that the ex debito justitiae rule remained as the starting point. However, the court’s discretion remains unfettered (Order 2 Rule 1).

Accordingly, the test of whether the ex debito justitiae rule applies is whether there has been an egregious breach of the rules of procedural justice that prejudices the defendant (e.g. judgment entered prematurely) so as to warrant the setting aside of the irregular default judgment as of right. If the court decides not to apply the rule, it must consider if there are any other reasons for setting it aside.

The crucial factor to be considered pertains to the merits of the defence. The burden lies with the plaintiff to show that the defendant is “bound to lose” (Faircharm Investments Ltd v Citibank International Plc [1998] EWCA Civ 171 (“Faircharm”)) even if the irregular default judgment is set aside and the matter re-litigated. The CA did not apply Faircharm wholesale but rather modified it to mitigate its harshness to the defendant (its effects have been mitigated in the UK by statute).

Therefore, the burden is naturally heavier on the plaintiff who obtained an irregular default judgment because firstly, he has to satisfy the court as to why the ex debito justitiae rule should not apply and secondly, if the court is satisfied on the 1st limb, the plaintiff has to further show that the defendant is bound to lose and it is therefore pointless to set aside the judgment for the matter to be re-litigated. Two observations are apposite: firstly, this decision clearly demonstrates the court’s fine act of balancing two competing interests which are the need to (a) dispose cases efficiently and expeditiously and the need for (b) procedural fairness to litigants.

Secondly, the thresholds set are rather pro-defendant as it either provides a very low threshold level for the defendant to overcome to set aside the default judgment or a high threshold for the plaintiff to overcome in order to sustain the default judgment. Perhaps this can be explained by a Court’s preoccupation with the fundamental overarching duty to dispense justice regardless of procedural breaches.

KRYSTLE CHIANG
Second Year NUS Law, Associate Editor, SLR

It’s old news now - Mr. Joshua Benjamin Jeyaretnam has passed on.

The first time I saw him was just this year, in the bar room of the Subordinate Courts. He was completely alone, yet confidently at ease, taking leisurely sips from his coffee mug while perusing the day’s news. I remember being envious of his ability to be disaffected by the socialising going on around him, while I was discomfited by the very same surroundings. An intern then, I felt like a fish out of water; but he was comfortably at home, being who he was, where he was. His easy manner hinted at his vast experience in the law, which included holding the position of First Criminal District Judge back in 1963, a fact often eclipsed by his political reputation.

Indeed, with the spotlight focused mainly on his political undertakings since his passing, little has been mentioned about his legal contributions. Yet, Mr. Jeyaretnam was a man whose life was tied inextricably to the law; whose passions were devoted to upholding and influencing the law both directly and indirectly. Throughout his lifetime, he was a lawyer, a judge, the occasional defendant, as well as a member of the legislature. His was an enriching legal journey and he had intimate dealings with every aspect of the law, from cross examining witnesses in court to engaging in fiery debates in parliament.

His most remarkable imprint on the law in Singapore lay in the law of defamation. The case of Jeyaretnam Joshua Benjamin v. Lee Kuan Yew, [1992] 2 Sing. L.R. 310 defined the scope of qualified privilege, a defence to defamation. When asked to consider if this common law defence should extend to cover words spoken at an election rally, the Court of Appeal held that it should not, gleaning from s. 14 of the Defamation Act (Cap 75) the intention of parliament to restrict “the scope of privilege to be attached to a speech made at an election”.  Six years after the case concluded, Mr. Jeyaretnam, who was dissatisfied with the state of the law on defamation,, sought to move a motion on 26^th November 1998 to have a commission appointed to examine and recommend changes to defamation laws in Singapore. He believed that it was the right of “every citizen to ask honestly, without any malice, any questions of public officials in their conduct and discharge of public functions” (Sing, Parliamentary Debates, vol. 69, col. 1728 (26 November 1998).

Mr. Jeyaretnam in part, if not mostly, also played the role of the catalyst in the decision to abolish appeals to the Privy Council in cases concerning disciplinary proceedings against lawyers in 1989. After the Privy Council decided in 1988 that he should be reinstated to the bar because of the “grave injustice” done him, this channel of recourse was eradicated by the government. In Parliament, Professor S Jayakumar, the then Minister for Law, reasoned that allowing such appeals opened “a loophole for lawyers who [had] been convicted of criminal proceedings in the courts and [faced] disciplinary proceedings instituted by the Law Society (Sing, Parliamentary Debates, vol. 52, col. 742-743 (17 February 1989).

Shortly before his demise, he had actually helped file a class action lawsuit against Prime Minister Lee Hsien Loong for not holding a by-election in Jurong Group Representative Constituency following the death of its MP. In fact, he was set to appear before the High Court on October 15 this year, the first time in a long while that he would have donned the robes of a lawyer.

Whether he was using his brush to paint his vision of the law, or getting into a brush with the law, Mr. Jeyaretnam had always shown great fortitude and fighting spirit. His passing is a loss to many. The brief glimpse I got of Mr. Jeyaretnam might be dismissed by some as a mundane sighting, but he made his presence felt then, despite the triviality of what he was doing. I cannot help but remember Mr. Jeyaretnam.

He will be missed.

DANIEL GAW
First Year NUS Law

It happens.

We throw a dice, draw a Chance card and find ourselves in jail for no apparent reason, deprived of the $200 we usually get when we pass ‘Go’.

In Monopoly, the worst that could happen is losing three turns and $50. But in reality, imprisonment is a grave matter and can take away years of freedom from a person. Thus, in order to ensure that no one is denied his freedom without valid reason, Article 9 of the Universal Declaration of Human Rights (UDHR) states that “no one shall be subjected to arbitrary arrest, detention or exile”.

Yet, this protection of an individual’s freedom from arbitrary violations is not absolute in Singapore. Under s. 8 of the Internal Security Act (ISA), the Minister for Home Affairs can order the detention of any person as long as the President is satisfied that detention is necessary to prevent the person from threatening national security or from jeopardising the maintenance of public order or essential services”. As we shall see, this affords the executive too much discretion and contravenes Article 9 of the UDHR.

The UN Commission on Human Rights considers an arbitrary detention to have occurred when a person’s liberty is deprived without a final decision being taken by domestic courts in conformity with domestic law and relevant international standards (resolution 1997/50). Since detention under the ISA is entirely up to the discretion of the executive, it clearly fails the first limb of the test: judicial decision.

In fact, s. 8B of the ISA expressly limits the role of judicial review to that of ascertaining whether the procedural requirements of the Act have been complied with. This means that the courts can only decide, for example, whether the Minister has obtained the President’s satisfaction before ordering a detention; they have no authority to decide whether a detention order was indeed based on national security considerations, or whether it was motivated by reasons outside the ambit of the Act. In effect, the Minister, with the President’s agreement, has carte blanche to incarcerate anyone he likes.

The dangers of unfettered executive discretion have been vividly demonstrated recently in Malaysia, where its ISA-which authorises detention on broadly similar grounds-was invoked to arrest an anti-government blogger, an opposition politician and a journalist. While Malaysian officials claimed that the first two individuals were arrested for inciting racial tensions, they justified the third arrest on the ground that they had received threats against the journalist’s life and needed to protect her. This was obviously a ludicrous basis for invoking the ISA as the ISA does not grant the Minister the authority to arrest people for their protection. Although the journalist was subsequently released following tremendous public outcry, the point remains that the executive can abuse the ISA by arbitrarily depriving dissidents of their liberty in order to maintain its grip on power..

It is conceded that the ISA is useful in forestalling security threats; in recent years, it has enabled the authorities to nab extremists before they could inflict grievous damage upon Singapore. It would not be possible to apprehend these extremists under other penal laws, since they have not committed any crime. The ISA thus allows the government to preventively detain individuals who pose a serious threat to Singapore.

But even the spectre of terrorism does not justify granting such sweeping powers to the executive. Would the ISA’s utility in countering security threats be diminished if the courts were allowed to review decisions to see if they were based on legitimate grounds? Hardly. In Chng Suan Tze v Minister of Home Affairs [1988] SLR 132, the Court of Appeal drew a distinction between examining whether the executive’s decision was in fact based on national security considerations, and questioning the executive’s decision as to what national security requires. A court can do the former without doing the latter.*

This approach preserves the executive’s power to decide whether a detention is necessary to safeguard the security of Singapore, while ensuring that the executive does not exploit the ISA for its own ends. If the Minister orders detentions for legitimate purposes, there is no reason why he should fear judicial oversight in this respect.

Nonetheless, allowing judicial review is an inadequate solution as it still permits the executive to confine people who are not guilty of any crime for an indefinite amount of time. “National security” and “public order” are such amorphous grounds that they can be invoked to justify almost any detention. The executive, singlehandedly assuming the roles of judge, prosecutor and warden, does not need to provide positive evidence that the detainee poses a security threat or prove that his detention was really necessary.

Consequently, the ISA would still violate Article 9 of the UDHR even if the courts could ensure that it was being used in good faith. However, as the government is unlikely to repeal the ISA any time soon, enhancing the role of judicial review would be a small step in the right direction.

“Singapore… subscribes to the Universal Declaration of Human Rights,” insisted the Ministry of Law in its response to the International Bar Association Human Rights Institute’s Report on Singapore (July 2008). But mere ideological concurrence with the UDHR is meaningless when our laws clearly violate its provisions. Parliament should at least revise the ISA to check the unwarranted discretion it confers upon the executive.

*After the Chng Suan Tze judgment was delivered, parliament hastily amended the ISA to obviate whatever legal effect the judgment had. S. 8B was among one of the amendments.

Provisions under the ISA

Power to order detention.
8. -(1) If the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore or any part thereof or to the maintenance of public order or essential services therein, it is necessary to do so, the Minister shall make an order -

(a) directing that such person be detained for any period not exceeding two years; or

…

(2) The President may direct that the period of any order made under subsection (1) be extended for a further period or periods not exceeding two years at a time.

Law applicable to judicial review.
8B.

…

(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.

NG SOOK ZHEN
Second Year NUS Law, Juris Editor, SLR

The right to privacy has often been regarded as insubstantial in the face of economic growth and communitarian values. In his 1986 National Day Rally speech, the then Prime Minister Lee Kuan Yew commented: “I am often accused of interfering in the private lives of citizens. Yet, if I did not, had I not done that, we wouldn’t be here today. And I say without the slightest remorse, that we wouldn’t be here, we would not have made economic progress.”

Fast-forward to 2008.

We articulate our thoughts via  the keyboard, publish our photo albums to the world, and display our databases in places far-removed from the dusty dossiers they were once relegated to. .

New technologies have emerged and some have the ability to invade an individual’s privacy. Espial of communications like email, surveillance at the workplace and public spaces, and information systems such as biometrics and identity cards are now readily available avenues which one may use to access and interfere into the private life of another. Technology has changed the way we can define our private lives as citizens of an island that is wired up in every aspect of its public and private sectors.

And the law has changed too.

Privacy is now protected in e-commerce, through legislation such as Electronic Transactions Act, National Computer Board Act and the Computer Misuse Act. The Banking Act also prohibits disclosure of financial information without the permission of the customer.

Judicially, the modern case of Malcomson v. Mehta, [2001] 4 Sing. L.R. 454 (Malcomson), most noted for creating the local tort of harrassment, is a healthy indication that the courts are beginning to recognise privacy as a right.  As tangential to privacy as Malcomson may sound, the case signifies the empowerment of the individual (through the tort of harassment) to restrain others from interference of one’s personal space. Quoting International Privacy, Publicity and Personality Laws (2001) in the judgment, the court noted: “If and when this(the development in Singapore of a common law tort of intentional harassment) takes place, there would be much scope for the protection of privacy, since the tort may, if fully developed, protect against ‘distress, inconvenience and discomfort’.”

But the dearth of legislation or judicial decisions relating to privacy law remains startling.

Beyond the fact that the Constitution does not contain any explicit right to privacy, there is also little legislation that deals with the right to privacy.  Little has been done to cope with the rapid advancement of technology.

For instance, employer monitoring of employee phone calls, e-mails, and Internet usage is permissible under Singapore law. Under local property law, workplace e-mail, telephone and computer contents are the property of the employer. If, for example, an employee loses his job because of the contents of his communications technology, he has no grounds for defense based on an invasion of privacy.

There has been clear recognition in various jurisdictions that enshrining privacy rights in law yields economic benefit.  Experience in Europe and the United States has shown that such legislation is a pre-condition to increasing consumer trust, especially in online commerce. Further, many large multinational companies are hesitant about locating large-scale outsourcing operations in countries where there is no legal framework for publishing breaches of data security and data privacy.

Given that there is a pragmatic, facilitative role for privacy laws, and that the experience of such laws have been largely positive in foreign jurisdictions such as the United States, it may well be time that Singapore fills the lacuna that presently exist in her laws in order to deal effectively with the various privacy issues.

If we do not, and will not do that, we may not be here tomorrow.

MUHD AIDIL & LAI FENG JUN
Third Year NUS Law, Deputy Editor, SLR & First Year NUS Law, Secretary, SLR respectively

The atrocities committed during the Second World War made the flagrant disregard for human life and dignity painfully apparent and it was thus decided that a universal declaration was much needed to protect human rights and to acknowledge it as a global concern – a move welcomed by a world recovering from the ravages of war. Come December 2008, 60 years will have passed since the vision of sanctified and protected human rights was concretised with the proclamation of the Universal Declaration of Human Rights (UDHR) and the world will celebrate with commemorative activities organised  by groups of likeminded individuals from each member state.

In Singapore, a group called U60SG has been taking the lead in organising the activities. Its objectives are two-fold:  first, to celebrate the 60th Anniversary of the UDHR and the progress that it has made so far in the field of human rights, and second, to raise awareness of human rights in Singapore through their various U60SG activities. Their activities include a multi-disciplinary talk on human rights, a youth forum, a film festival, story-telling sessions with children, as well as a roving educational exhibition to educate the public on various aspects of the articles in the UDHR. All these will be held at the National Library and they aim to help Singaporeans gain a better understanding of the history of the international human rights movement, its various facets, as well as how our legislation has (or has not) incorporated these ideals into our laws.

U60SG organises its activities on an inclusive basis, allowing other parties to hold complementary events under its auspices. In August 2008, the Law Society organised a series of talks on Human Rights and established a Public and International Law Committee which seeks to “promote the study and understanding of public law and public international law and to develop awareness of the extent of the application of public international law in Singapore”. NUS Law Faculty’s Pro Bono Group will also be organising similar educational events and activities, which include an interesting and novel method of blogging on a “right of the day” every day for 30 days from 6 November 2008 to 5 December 2008.

It is the fundamental principle that human rights are an intrinsic part of our lives-even if we are unaware of it-which motivates U60SG. As U60SG’s Co-Chairperson, Ms June Lim, rightly points out, “Human rights is the reason why we get to go to school (right to education), the reason why women can expect equal pay for the same jobs as men, and the reason why there are intellectual property rights.” For example, one’s right to education free from discrimination is guaranteed under Article 16 of our Constitution, although it is interesting to note that this is not an absolute guarantee of one’s right to education. With the authorities’ recent decision to allow public protests at Hong Lim Park being a possible indicator of how Singapore’s attitude towards the freedom of speech has finally come of age, U60SG is hopeful that this momentum will prompt Singaporeans to take a more active interest in human rights.

However, amidst the fanfare, there seems to be something missing at the heart of it all. Are the celebrations merely “full of sound and fury, signifying nothing”? After all, Singaporeans are known to be a pragmatic bunch who take little interest in advocating abstract ideals. As Ms June Lim concedes, it is unrealistic to “expect tangible results from the U60 celebrations”, but it is also impossible to talk “about the promotion and protection of human rights [unless] the general public has an idea of what human rights are in the first place”. The general mindset of the people that human rights is neither something close to heart nor important is precisely the reason for all the fanfare, which seek to, at the very least, arouse people’s awareness and interest in human rights. A society is shaped by its laws - more importantly, the values, aspirations and goals of any society find expression in its Constitution. Our laws have yet to completely incorporate the ideals of UDHR but in the spirit of the U60SG celebrations, we can always hope.

(Read the Print Version: Juris Illuminae Vol. 5 Issue 2 Print Edition)

AMOS TOH
First Year NUS Law, Youngest Life Theatre Awards Judge (in 2008) to date

The Public Entertainments (Amendment) Bill* passed in 2000 did not tread new political ground, adhering to the government’s longstanding doctrine of anticipatory self-defense against indeterminate evils, namely anything “indecent, immoral, offensive, subversive or improper”*. Among these haphazard amendments was a Demerit Point system aspiring to heighten “transparency in the administration of licence” but, as one Nominated Member of Parliament (NMP) Mr. Zulkifi Bin Baharudin blithely pointed out, was “totally lacking in detail”. This article attempts to reconcile the revised scope of the Public Entertainments and Meetings Act (PEMA)* and new licensing restrictions with the government’s post-twentieth century push for artistic vibrancy, and consequently examine the implications PEMA exerts on the arts.

While the Bill attempted to enhance flexibility of licensing procedures, new powers conferred on licensing officers ultimately retrograded these efforts. The Bill’s amendments eliminated clauses enforcing one-year maximum validity periods for a public entertainment or meeting licence, only to replace them with provisions allowing government officials to reject applications for renewal of such a licence based on consultations with “relevant bodies”* (reference). Removing restrictive licensing clauses and conferring statutory powers upon government officials to restrict these licences is a tautological exercise in scrapping old ways and finding novel ones to impose the same measure of restriction on public entertainments and meetings.

These restrictions are imposed mechanically and across the board, on the basis that any exclusion will undermine “public morality and decency”. Under clauses 4 and 16 of the Bill, the scope of “public entertainment” was revised to include new entertainment media like “computer centre(s)” and “amusement centre(s)”, while making generous concessions for activities like “garden parties” and “charitable distributions”. These trifling technicalities merely scrape the bottom of the legislative barrel for political change, and obscure the government’s reluctance to relinquish any control over civil discourse.

Such a statutory framework appears to run counter to the government’s lofty aspirations to transform Singapore into an “arts and culture hub”, replete with impressive artistic infrastructure and avant-garde festivals and events. However, if one were to consider the then Senior Minister Lee Kuan Yew’s 1995 parliamentary swipes at political activists and freewheeling Western liberals, these efforts cohere with the government’s conservative position on rights discourse. Challenging Western conceptions of democracy, Mr. Lee recognised Singapore as an “ideal development country” rather than a Western-influenced “ideal” society. Singapore’s rule of law was a “valuable economic asset” that “should not deviate and form a different kind of system.” Thus, individual freedoms are only granted insofar as they retain economic value; a fortiori artists can exercise their freedoms as long as it is economically viable for them to do so.

A sense of wariness penetrated both Mr. Zulkifi and Mr. Simon Tay’s responses to the Bill’s amendments in November 2000. Recognising that the expanding scope of public entertainment restrictions applied to an equally wide range of activities, they suggested that the Bill was ill-suited to special classes of activities like arts performances. Mr. Tay cautioned the government to exercise “its powers to impose special conditions for the approval (of licences) wisely”, while Mr. Zulkifi expressed concerns over the lack of “clear boundaries within which the arts groups are allowed to operate”, urging that “(we) must separate arts from politics and make a clear distinction between the regulations for entertainers and that of politicians”.

The distinctions Mr. Zulkifi and Mr. Tay make between arts activities and civil discourse are founded on the bare assertion that an artist’s reach to the masses will forever be restricted, appealing only to certain class backgrounds. Steep ticket prices effectively limit the kind of audience exposed to their works, while traditional misconceptions that the arts are “abstract” and impenetrable keep artistic discourse on the fringes of society. An artist should be entitled to special freedoms because his work, by circumstance, caters to a highly selective audience. Unlike civil discourse, encouraging artistic development through the relaxation of legislative restrictions furthers economic growth policies while barely affecting our “ideal development” principles of law.

Thus, the Bill’s restrictions, while offering unspecified and arbitrary freedoms, foster a climate of uncertainty and fear. As exhaustive records of erratic censorship indicate, artists can never be certain whether their next film, performance or artwork will pass censor authorities unscathed, or be forbidden from even selective viewing. This led poet and academic Cyril Wong to observe that Singaporean artists “have become so caught up in just being able to survive as an artist that they work with censorship (hence creating a lot of dull work), as opposed to against it”.

Some argue that Singaporean artists have created valuable art despite, and perhaps out of such restrictions. And indeed they have. Natalie Hennedige, artistic director of Cake Theatrical Productions, has not only avoided the wrath of censorship authorities but also overcome the reflexive need to self-censor. In articulating her artistic vision, Ms. Hennedige explained that her “productions tend to be more lyrical and allegorical in nature so even when they do broach (political and social) issues they impact on a less direct, more sub-conscious level.”

However, how long and how effectively can artists dance around PEMA restrictions, and more importantly, why should they? These restrictions abrogate not only the right of an artist to perform, but also to fulfill his professional duties. Moreover, PEMA is merely a microcosm of a wider, more perplexingly restrictive climate enforced through the letter of the law. Restrictions on press freedom, for example, have contributed to a dearth of artistic criticism and dialogue. Impressive cultural venues might be built at breathtaking pace, but they will remain hollow vessels if artists cannot truly represent themselves on these stages.

The full version of the Public Entertainment Meetings Act can be found at http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_retrieve.pl?actno=REVED-257&doctitle=PUBLIC%20ENTERTAINMENTS%20AND%20MEETINGS%20ACT%0A&date=latest&method=part.

*Assoc Prof Ho Peng Kee proposed and discussed The Public Entertainments (Amendment) Bill on Nov 13, 2000. The full text of his speech can be found at http://www.mha.gov.sg/basic_content.aspx?pageid=65.

Case Highlight on Public Prosecutor v. Sulaiman Damanik and Another [2008] SGDC 175 and Public Prosecutor v. Tang Wee Sung [2008] SGDC 262

CHERYL CHAI
First Year NUS Law, Associate Editor, SLR

In the first prosecution against illegal human organ trade in Singapore, two Indonesian men, Sulaiman Damanik and Toni, were convicted on 2 July 2008 of selling their kidneys to two Singaporeans, Tang Wee Sun and Juliana Soh respectively. District Judge Bala Reddy held that Sulaiman and Toni had committed an offence punishable under s. 14(1) read with Section 14(2) of the Human Organ Transplant Act (HOTA) Cap 131A “Prohibition of Trading in Organs and Blood”. Toni had also committed an abetment offence, under s. 109 of the Penal Code (Cap. 224), by acting as a liaison between Sulaiman and the middleman Wang Chin Sing.

This landmark case raised two different issues in the Singapore court and in Parliament. While parliamentary debates centered on the issue of legalising organ sale, this was not a question within the court’s purview. Instead, the court was concerned with what mitigating factors it should consider when meting out just sentences for the offenders.

Reddy DJ was guided by three principles on sentencing. First, judges should assess the individual circumstances related to each offence and offender. This principle is reflected in Reddy DJ’s statement, “Justice will only be done if each individual in the human organ trafficking chain who is prosecuted, is punished according to the extent of his or her involvement in the arrangement and the degree of his or her culpability”. Second, statutory maximums are set by parliament to reflect the gravity with which the public views the associated offence; hence, judges should determine where “the offender’s conduct falls within the spectrum of punishment devised by Parliament” (per Judge of Appeal V K Rajah in Angliss Singapore Pte Ltd v PP [2006] 4 SLR 653). Under HOTA, the criminal offence of illegal organ supply is punishable with a fine of up to $10,000 or with imprisonment for a term not exceeding 12 months or with both. The third principle is that sentences are also meant to have a deterrent effect.

Acting on these principles, Reddy DJ imposed a low fine and short imprisonment on Sulaiman and Toni for selling their kidneys. The reason? They deemed victims and not perpetrators of illegal organ trade. Toni received a stiffer sentence for his offence of abetment of organ trade because he was profiteering from the sale by acting as the syndicate’s runner facilitating the trade. This ‘clear signal’ was sent with the intent of deterring others profiteering from exploiting the destitute via organ trade.

While this case examined the culpability of sellers and facilitators in illegal organ trade, the buyer, Tang, was charged under HOTA in a separate hearing on 3 September 2008. This conveys the strong message that HOTA applies to all parties involved in illegal organ trade.

This case also sparked parliamentary debates on the possibility of legalised organ trade in Singapore. Minister for Health, Mr Khaw Boon Wan, did not rule out such a possibility because a flourishing black market is but an inevitable corollary of criminalising organ trade. The law is unable to eliminate the demand for and supply of kidneys: the rich prefer kidney transplants to kidney dialysis due to the prospect of a better quality of life and the poor are willing to sell their kidneys for money. Black markets pose a large risk to the sellers because without regulation, there tends to lack a proper medical healthcare structure. Also, the middleman is at liberty of absorbing a large proportion of the compensation money given to the organ sellers who are usually poorly educated and ill-informed.

With the fifth highest kidney failure incidence rate in the world, Singapore’s shortage of suitable kidneys for transplant poses a fatal problem that warrants immediate practical solutions. Instead of debating over whether organ trade should be legal, perhaps the more pertinent question we should be asking is how a regulatory system of ethical organ sale, that not only eliminates the waiting list but also protects organ sellers from being disadvantaged, can be implemented.

Much near future though, Singapore is likely to amend HOTA to encourage more altruistic organ donation. Mr Khaw suggested learning from Spain and Norway, where organ donation schemes created an organ supply that almost met demand - a feat that Iran, the only country to legalise organ trading, did not even achieve. This suggests a possibility of meeting the high demand of organs without decriminalising organ trade, a move many still deem unacceptable on ethical grounds.

TEO CHIN GHEE
First Year NUS Law, Associate Editor, SLR

“Judicial independence doesn’t require judicial isolation.”

That was the essence of “In Conversation with Lord Woolf”, a talk by the former Chief Justice of England and Wales from 2000 to 2005, Lord Harry Kenneth Woolf, held in the Subordinate Courts on 10 September 2008, during which he shared his personal insights about his time on the Bench.

His book, The Pursuit of Justice,   launched on 27 March 2008 - has garnered praise from many reviewers such as The Law Society Gazette (UK).. With the issues discussed in his book in mind, Lord Woolf presented his views on the tremendous change and reform that the English legal system underwent during his time as the Lord Chief Justice and the challenges that the judiciary faces today.

Highlighting the importance of separating the legislative, executive and the judiciary, he recounted his concern when Lord Falconer of Thoroton, the Lord Chancellor and the head of the judiciary, was also appointed the Secretary of State for Constitutional Affairs in 2003. As Lord Chief Justice at that time, Lord Woolf was perturbed as he felt that this move would blur the line between the respective duties of the legislative and the judiciary.

Calling this move “a constitutional change right at the heart of the system”, he emphasised the importance of the judiciary’s role in a working democracy, without which democracy would “become an elected dictatorship”.

In March 2004, in a speech at Cambridge University, Lord Woolf spoke out  against the Constitutional Reform Act that sought to create a Supreme Court of the United Kingdom (UK) that would replace the House of Lords as the final court of appeal in the UK and questioned the Lord Chancellor’s handling of recent constitutional reform. The debate over the Constitutional Reform Act, criticised by judges and lawyers alike, had just culminated in a concordat achieved by Lord Woolf with the Lord Chancellor, which would afford protection of the judiciary’s independence. That agreement put his concerns to ease.

Explaining his grounds for rejecting the bill to the audience in the Subordinate Courts, Lord Woolf said: “It seemed inevitable that judges will come into conflict with parliamentary decisions for the first time. A renouncement of these changes is based on no great principles of the law but great principles of justice.”

While Lord Woolf recognises the importance of judicial independence, he also subscribes to the belief that there should be “a spirit of partnership between the judiciary, the legislature and the executive”, which he views as crucial for the judiciary to meet the changing needs of society. With this in mind, he brought up one area of one judicial reform he wanted to achieve in England, which was the establishment of a proper legal aid system.  This, he believes, is the key to making justice accessible.

“The state has to recognise that it has to provide access not just to civil but also criminal justice. The English legal aid system used to provide the most monetary aid out of the many jurisdictions, but the government found it riding an unruly horse as the expenditure went out of control.”

His concern is that as a result, whenever it is possible to save money on legal aid, the government will now do so. However, Lord Woolf feels that under the Human Rights Act, the defendant has a right to legal representation and to be properly looked after. This, he said, is a serious change he wants to effect, given the chance.”

Lord Woolf also expressed his view that judicial independence does not require, and should not come at the expense of judicial isolation. To illustrate his point, he recounted how during his trip to Japan he discovered that the Japanese judges were “revered and treated with immense respect” by the people, much like their national icons, the sumo wrestlers. However, because of their high social standing, the judges, like the wrestlers, do not interact with the average joes but instead remain in their ivory towers This, in his opinion, is a great pity because being “a people apart”, they could not share their knowledge and experience with others, not even with the local law students.