The Singapore Law Review

Recent events have brought into sharp focus the difference in attitudes towards screening television programmes involving homosexuals in two Asian countries: Hong Kong and Singapore.

When Hong Kong TV station RTHK screened a programme about homosexuality in July last year, it earned a stern warning from Hong Kong’s Broadcasting Authority, for allegedly breaching local broadcasting regulations. However in May this year, Hong Kong’s Court of First Instance quashed the Authority’s decision.

Shot in documentary style, the programme “focused on the day-to-day lives of two gay couples, looking to the difficulties encountered in their lives, their fears and their aspirations.” The participants also “spoke of their hopes that one day the law in Hong Kong would be changed to recognise a civil union between gay couples.”

Members of the public complained, alleging that the programme was biased towards homosexuality, exerted a bad influence on children, was unfair to Christians, did not contain a warning caption and “did not mention the undesirable aspects of homosexuality such as AIDS”.

The Broadcasting Authority considered the latter three grounds unsubstantiated, but agreed that the programme should not have been broadcast within the 4pm to 8.30pm time-belt. “Children and young viewers watching the programme might have no knowledge of homosexuality and might be adversely affected by the partial contents of the programme if parental guidance was not provided,” it noted.

As the programme had dealt with the issue of same-sex marriages, which are not yet legal in Hong Kong, the Authority also considered that it was a “factual programme dealing with matters of public policy or controversial issues of public importance in Hong Kong”. Accordingly, the programme was subject to a rule in the Authority’s code of practice that required such programmes to be presented with “due impartiality”. RTHK was alleged to have breached this rule, as “the programme presented only the merits of homosexual marriage and featured only the views of three homosexuals on the legislation of homosexual marriage.” RTHK was therefore “strongly advised” to observe the code more closely.

Hong Kong’s Legislative Council swiftly passed a motion denouncing the Authority’s decision, calling it “discrimination on the ground of sexual orientation”. Meanwhile, Cho Man Kit, a gender studies PhD student who was featured in the programme, sought to challenge the Authority’s decision by way of judicial review.

The case was tried in Hong Kong’s Court of First Instnace before Justice Hartmann, who found that the programme was “not, in any way a ‘political’ programme attempting to advance any sort of public cause. The issue of same-sex marriage was an incident in the programme; a material one, yes, but not in any way ‘promoted’ in the active and political sense that the word intends by either those in the programme or those who made it.”

He noted that although the programme did not incorporate opposing points of view on the issue of same-sex marriage, “on any reasonable viewing, the programme manifestly was not designed as a vehicle to ‘advocate’ any particular point of view”. “As a study of gay people involved in stable, long-term relationships, it naturally recorded matters that they considered important, such as the hope that one day their unions may receive some form of legal recognition.” This, however, did not amount to advocacy.

He also pointed out that “invariably any portrayal of the human condition will reflect some sympathy with the subject. Such sympathy, however, often no more really than an instinctive empathy, is not to be read as a form of active ‘promotion’ of any aspiration that arises in the course of the portrayal.”

The programme was therefore in no way impartial and the Authority had been wrong to think so.

Examining the language of the Authority’s statements, Hartmann J also thought that it had unwittingly come to its decision simply because of the beliefs of some viewers that homosexuality was “offensive.” He thus found himself satisfied that the Authority’s finding had arisen out of a misunderstanding of its own code of practice. This misunderstanding had resulted in “an impermissible restriction on the freedom of speech, a restriction founded materially on a discriminatory factor; namely, that homosexuality, as a form of sexual orientation, may be offensive to certain viewers.”

Accordingly, the Authority’s decision was quashed.

In Singapore, restrictions on broadcasting gay content remain as strict as ever.

In January this year, Channel 5 screened an episode of a home and decor show in which a gay couple redecorated a nursery for their adopted child. Straits Times reader Bennie Cheok wrote in, asking the TV station to be more selective in its programming. “Allowing a show that depicts a gay married couple as a family nucleus on national television may be acceptable in Western society, but it may not be appropriate in the context of our Eastern culture”, he said. “The absence of the opposite gender in the family nucleus will, no doubt, leave young viewers bewildered.”

Nominated MP Thio Li-ann took up Cheok’s case in Parliament, asking what steps ahd been taken by the Media Development Authority to remedy the situation. Referring to the programme, she said ”it undermines the family’s importance as a basic social unit, signaling that same sex parenting is acceptable. This contradicts our family values and conception of family where a man and woman marrying and having children is normative.”

In response, Senior Minister of State for Information, Communication and the Arts, Balaji Sadasivan, stressed that a “balanced view” was necessary. He noted that the objections raised did not relate to the programme’s main features but to an “incidental feature found in this one episode,” which was that “the people who were going to live in the redesigned home were two men and a child, not the usual man, woman and child.” “The viewer can extrapolate what the relationship of the two men may be and then from the extrapolation conclude that family values are not being upheld”, he said.

While the homosexual theme was at the forefront in the Hong Kong programme, in the sjow aired by Channel 5 it could have been described as tangential, at best. Yet, in April, the proverbial sledgehammer was used to crack the nut when the Media Development Authority slapped Channel 5 with a $15,000 fine for breaching local broadcasting guidelines. “The episode contained several scenes of the gay couple with their baby as well as the presenter’s congratulations and acknowledgement of them as a family unit in a way which normalises their gay lifestyle and unconventional family setup”, its press statement said.

Mohan is a third year law student and a Senior Editor of the SLR.

As students gather come August 25^th for the launch of the inaugural International Writing Symposium, they will witness the Singapore Law Review (”SLR”) takes one giant step  - that is, if the student editorial board of SLR gets its way.

Just a year ago, SLR decided to incorporate the symposium into its annual SLR Writing Competition for the first time, a bold move, albeit with a sound objective of giving contestants a chance to defend and discuss their papers under the scrutiny of distinguished judges.

A year on, SLR took another big leap by catapulting the Writing Competition to an international platform.

A first of its kind in Asia in terms of scale and format, the International Writing Symposium (”IWS”) - wholly organized by the student editorial board of SLR with the support of the Singapore Academy of Law and the NUS Faculty of Law -has drawn entries by students from different universities spanning 5 continents. These include: University of Glasgow, University of Auckland University of Sydney, University of Malaya, National Law School of India University, University of Philippines, NALSAR University of Law, University of Western Ontario, National Law School of India University and of course, National University of Singapore.

Fortuitously, although entries were bound by the theme of discrimination, all entries explored different issues on the same subject and a wide range of legal issues was covered.

In this prelude to the launch of the IWS, Juris Illuminae gives you an insight into the profile and personal interests of some of the finalists. Do come down to the moot court on 25^th -26^th August 2008 to see them live!

Shatadru Chakraborty

4^th Year, National Academy of Legal Studies And Research (NALSAR), Hyderabad, India

Essay Title: Discrimination against Workers under the Special Economic Zones Act, 2005 - A Hindrance to India’s Development

Research Interest: Public International Law, Maritime Law

Shatadru examines in his paper how the Special Economic Zones Act 2005 enacted by the Indian Parliament and the concomitant rules framed by the Central Government create a differential regime for worker’s rights in Special Economic Zones. He argues that the disregard for core worker’s rights is a hindrance rather than a help to economic development.

Shatadru enjoys reading, watching movies, listening to music and debating on social issues.

Q: Why did you choose this particular theme for your article?

A report online on the condition of workers in Special Economic Zones in China and the fear of a similar predicament for those in India. I was prompted to think of a solution to the global conflict between economic growth and human rights after I read Amartya Sen’s Development As Freedom.  The theme of Labour rights versus Economic development or rather Labour rights with Development through the conspectus of the recent SEZ legislation in India thus offered the perfect opportunity for an application of the first principles. My reading of the literature of the transnational labour movement only helped me to add legalistic credibility to my approach.

Q: What was the push factor to join the SLR IWS?

The chance of getting an internship with T.S. Oon & Bazul particularly since I have worked on Maritime Law before, in addition to the opportunity of doing an LLM at NUS.

Q: How do you think this symposium will further your legal education and growth?
The possibility of a discussion on my own presentation is sure to be a learning experience in so far as my success or failure at the same will depend not only on my research but also perhaps on my ability to think on my feet.

Nick Sim Shi Qiang & Amardeep Singh

Year Three, National University of Singapore

Essay Title: Discrimination: Help or Hindrance? - Listening to the Battered Woman’s Silent Screams

Nick and Amardeep may be familiar faces to you in NUS Law School. They collaborated to produce an essay on the battered women syndrome, where abused women suffering from it are not presently able to rely on it as a defence for the murder of their abusers. They have proposed a reformulation of the existing criminal law defences so as to allow abused women to plead defence under one of the existing defences in criminal law.

Q: Why did you choose this particular theme for your article?

Nick: We saw a need for an article, written by Singaporeans, which explores the controversies surrounding the battered women’s syndrome. Local jurisprudence and literature on the issue is lacking. We were hoping that our work could provide some information to parties who may be interested in finding out more about battered women, and the circumstances which drive them to kill.

Amardeep: Criminal law has always fascinated me. Reading the accounts of these battered women really moved me. I couldn’t believe that animals whom these women are accused of killing could treat their wives so cruelly. And yet, the very same law which is supposed to protect these women punishes them for something which they should not be guilty of.

Q: What was the push factor to join the SLR IWS?

Nick: The IWS would be a great opportunity for us to test our ideas and opinions; and to defend them against scrutiny. We were also eager to have our work published.

Amardeep: I guess the possibility of having our work published and reaching a mass audience and being able to share with them our thoughts on the law. After all, if we the people whom the law affects do not talk about it and point out its deficiencies, then who will?

Emmi Okada

5^th Year, University of Sydney

Essay Title: The Indigenous, the Imperial and the International: A Contextual Comparison of Laws Concerning the Ainu of Japan and Australian Aborigines

Research Interests: Social movements, indigenous and minority rights

Emmi’s essay examines the national and international laws applying to two groups of indigenous peoples: the Ainu of Japan and the Australian Aborigines. She suggests possible avenues by which international law can spearhead the development of the rights of indigenous peoples by playing a significant role in supervising indigenous-state negotiations.

Emmi’s interests include reading, traveling, playing the piano, creative writing and being socially active. She is also passionate about indigenous issues.

Q: What was the push factor to join the SLR IWS?

I received an email from Sydney University law faculty office, and thought to myself that I had a perfect topic for the essay theme.

Q: What do you look forward to in your trip to Singapore?

I’ve never been in the country before except for a transit stay, so I’m looking forward to soaking up the atmosphere, trying out the different food (within vegetarian limits), mixing with interesting and energetic Singaporean students and generally learning about a new place.

An Qi is a third year law student and a Senior Editor of SLR.

“Regardless of race, language or religion…”  Our national pledge reminds us constantly that discrimination is not tolerated in Singapore. Yet, pry further into a statute as basic as the Constitution and we find that discrimination is enshrined in the law.

In direct defiance to our pledge, for instance, is s152 of the Constitution which title reads: “Minorities and special position of Malays.”

In s152(2),  the law exerts: “The Government shall exercise its functions in such manner as to recognise the special position of the Malays, who are the indigenous people of Singapore, and accordingly it shall be the responsibility of the Government to protect, safeguard, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language.”

Racial discrimination approved by the law? Perhaps when this provision was first introduced, discrimination on paper manifested itself as an environment for anti-discrimination in reality. Yet, now that we have moved on and left history behind, the question of whether we still need express laws to display discrimination in this cosmopolitan society begs to be answered.

Another overt display of discrimination in the law is the notorious example of s 377A of the Penal Code, which reads: “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.”

This legislation may be paralleled to s118F of the Crimes Ordinance in Hong Kong where “A man who commits buggery with another man otherwise than in private shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.” In reviewing this legislation in a case where two males were charged with engaging in sodomy in a car park, Hong Kong’s Court of Final Appeal, the highest court in the territory had ruled unanimously last July that s118F of their Crimes Ordinance was discriminatory, unconstitutional and thus could not apply.

Despite cries for s377A to be repelled last year during the Penal Code review process, the section remains and the discrimination continues.

But society is not totally ignorant of discrimination that exists in the law.

Take for instance the rescinded “Graduate Mother’s Priority Scheme”, introduced in 1984 and removed the following year. The scheme institutionalised the priority given to children of university educated mothers who had three or more children, giving them a first-hand pick during primary school registration.

The differential treatment based on the educational level of the parent- like other differential treatment schemes - was rejected by society. The legislation, following a public outcry over the obvious discriminatory practices, moved quickly to resume fairness in this area of the law.

In conclusion, examples in the past and present have illustrated that discrimination is an outdated concept - there is no need for it, at least not in a country we hope to call open and equal. Bias planted in the law should also be uprooted so that the law may serve as a guiding ray for promoting fairness and justice in a growing and diverse society.

Sook Zhen is a second year law student and the Editor of Juris Illuminae.

Constitutional  law is more important than ever for the continuing development of Singapore’s legal system - that is, if Assistant Professor(As/P.) Arun Thiruvengadam and other crucial legal actors are right.

In a recent interview on 16 July, 2008  at the National University of Singapore (NUS) Faculty of Law Bukit Timah Campus with the Singapore Law Review, As/P Thiruvengadam cited the current president of the Law Society, Michael Hwang’s actions in March this year as an example.

Mr. Hwang had reiterated the lament of his predecessor, Philip Jeyaretnam, that traditions of constitutional law and advocacy have remained underdeveloped in Singapore.  He then persuaded council members of the Law Society to set up a committee to study human rights in order to “promote greater awareness of public and international law.”

The Committee which was formed as a result now consists of leading members of the bar in Singapore, like Dr Thio Su Mien, former dean of NUS Faculty of Law and Senior Counsels Sundresh Menon and Cavinder Bull.

This increasing emphasis on Constitutional Law  appears to be finding support among judges in Singapore as well.

In XP v. PP, [2008] SGHC 107, Judge of Appeal Justice V K Rajah drew a connection between the disciplines of criminal and constitutional law by emphasising that “it is the constitutional role of the judges to carefully and dispassionately evaluate the deficiencies of the Prosecution’s and/or the Defence’s case theory on the sole basis of legal proof and not mere suspicion or intuition.”

This, according to As/P Thiruvengadam, is significant because it marks a departure from earlier times when constitutional law in Singapore was treated as an autonomous area dealing only with issues such as politics, and was to be kept isolated from other branches of law.

In his view, the recent trend in Singapore is to be welcomed, because it will enable the maturation of the legal system of Singapore as a whole.

“Other areas of law, say Contract Law, are relatively more straight forward as people would respect the basic tenets of the law for reasons of finality and efficiency,” he said.

In constitutional law, however, these imperatives do not necessarily lead to easy acceptance of efficient but unjust results. In order to find broader support and legitimacy, solutions to constitutional disputes cannot simply be forced upon people in the name of efficiency or commercial soundness.

Such solutions must be in tune with deeper societal values, and must also respect the legitimate interests of the affected individuals in a reasonable, just and sensitive manner. Here, more so than in other areas of law, knowledge of the ‘black-letter’ law is insufficient, and a far greater appreciation and understanding of local socio-political and cultural factors is required.

The challenges of constitutional law are great, and  discrimination in the law, As/P Thiruvengadam believes,  serves as a good example to highlight these very challenges.

To illustrate the complexities involved, As/P Thiruvengadam raised the simple example of the thin line between meritocracy and class-based discrimination in Singapore.

“How do we know that a student who secures good grades does so because of her intrinsic ‘merit’ or because she is fortunate to come from a privileged background that allows her to take advantage of attributes - such as private tuition classes or greater ease with the English language -  that come with an upper class background?” he asked.

“When and to what extent should we take such backgrounds into account to prevent us from crossing that line?”

What would you say to our finalists coming down to present their papers at the Symposium?

“First, I would congratulate them for having been shortlisted.  Given the competition involved, this by itself is quite an achievement.  Having closely studied the intricacies of discrimination law in their own jurisdiction, I would encourage them to use this opportunity to look at the laws in other jurisdictions, and to examine how and why they differ from the laws in their home countries. This will demonstrate, in a very practical way, the usefulness of looking at others.  At the same time, having to defend your own legal system’s position to others will allow them to see how one is viewed by others.  The metaphor of a legal ‘mirror’ comes to mind.”

As/P Thiruvengadam has taught Public Law the NUS Faculty of Law for three years.  In August 2008, he shifts his focus, and will be teaching an elective course on comparative constitutional law.

Lynette is a second year law student and the Deputy Chief Editor of the Singapore Law Review.

Lo Pui Sang and Others v. Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Other Appeals [2008] SGHC 116

What happens when you are in a minority group of 20% and the law dictates that your rights may be subjugated to the decision of the majority 80% group? The instinctive reaction from a third party is probably predictable - “Of course, majority wins!”

The legal system, being conscious of notions of equality and fairness, does not always concur with the simple “majority-wins mantra” to the extent that it violates the right of the individual person to be protected by the law. The inherent vulnerability of the minority weighs heavily on the conscience of the law to warrant the institution of statutory protection in various forms: for example Sections 216 and 216(A) of the Companies Act (Cap. 50, 2006 Rev. Ed.) aimed at protecting minority shareholders; and Article 12 of the Constitution of the Republic of Singapore (1999 Rev. Ed.) which enshrines the right of all persons to equal protection by the law.

However, discrimination is definitely not taboo in the eyes of the law because it is not necessarily synonymous with inequality.

Lord Diplock in the seminal case of Ong Ah Chuan v. Public Prosecutor [1989] 1 AC 648 (”Ong Ah Chuan“) stated logically that what Article 12 of the Constitution assures the individual is the right to equal treatment with other individuals in similar circumstances [only]. Inequality can occur where the unlike are treated with like. It is also precisely through discrimination of the desirable and undesirable that our legal system is able to administer justice to meet the expectations of the people.

Therefore, where statutory provisions provide for the majority to trump the minority, the question is not whether the minority have been discriminated against, but rather, was the discrimination arbitrary and without any reasonable basis.

In this case, Mr KS Rajah, S.C. submitted on behalf of the appellants (minority shareholders) that the 80% rule in Sections 84A and 84B(1)(B) of the Land Titles (Strata) Act (Cap. 158, 1999 Rev. Ed.) are unconstitutional as they discriminated against the minority such that the majority has a choice as to where they wished to live while the minority would be deprived of that same choice.

It is submitted that Justice Choo was correct to point out that the law requires a deeper analysis than this, and the counter-arguments proffered by His Honour at paragraph 7 of his judgment to support his view that the provisions do not infringe Article 12 were persuasive. The right to equal protection under Art 12(1) must be determined from the outset and indeed, all the home owners had equal opportunity to sell their houses under the law. This means that the appellants’ argument failed at the first stage of the three-stage test for the constitutionality of discrimination under Article 12 formulated in Taw Cheng Kong v. Public Prosecutor [1998] 1 SLR 943 at [33], since the law was not discriminatory against the minority at the outset.

(Although the Singapore Court of Appeal subsequently overruled the High Court decision to strike out a statutory provision as unconstitutional, the formulation of the three-stage test remains a good expression of the test used by the courts following Ong Ah Chuan).

A differentiating factor in the legislation may not be discriminating to the people affected, depending on whether there has been a real classification from the outset. Broadly-speaking, differentiation is the modus operandi of the law and discrimination between people in different circumstances is impeccable insofar as the differentiating factor, in the words of Lord Diplock, bears a “reasonable relation to the social object of the law”.

It remains to be seen whether the minority home owners of Horizon Towers would appeal against the judgment which denied their claim of discrimination.
An Qi is a third year law student and a Senior Editor of SLR.

William O. Douglas, the longest serving Justice of the Supreme Court of the United States once mused: “Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.” Indeed, while internal guidelines ensure that prosecutorial discretion is less than absolute in Singapore, the Public Prosecutor (officially the Attorney-General on whose authority the Deputy Public Prosecutors act) is undeniably a very important actor in the local criminal justice system.

As Mr. Winston Cheng, Deputy Public Prosecutor of the Attorney-General’s Chambers admitted during a talk held in NUS law school on March 18 this year: “We have the sole discretion in the institution, conduct and discontinuation of criminal procedure.”

This discretion operates on two-folds.

First, public prosecutors decide what to prosecute, looking at each crime committed on a case-by-case basis. The decision on whether to prosecute, as Mr Cheng noted, is “not for the sole purpose of obtaining a conviction”.

“If a person is a first offender, is a student and is remorseful, you are not going to put him on a trial.”

The second form of discretion - and often the unwilling result of the sheer volume of cases to be reviewed - is the length of time taken to bring a case to trial. The usual lag time between when an offence is committed and when it is prosecuted in court is estimated to be about one to two years, depending on the complexity of the cases.

But there is no limitation period for criminal offences locally, and public prosecutors may choose to prosecute a case well beyond the time after it was committed.

The case of Chan Kum Hong Randy v. Public Prosecutor, [2008] SGHC 20 (H.C.) [Chan], for instance, showed that long lag times are not rare occurrences. In Chan, six to ten years elapsed between the detection of the offences committed and the actual prosecution.

“As a result of the delay in prosecution, the appellant faced the prospect of having to suffer not once but twice the pain and hardship of incarceration as well as the rigours of reintegration into a society,” said Justice VK Rajah, who heard the appeal. (Chan at para. 50).

And the worry about discretion does not just stop there. Currently, there is little publicly available information about this discretion process, and the lack of transparency is fast growing into a pressing concern.

This issue was further highlighted in section 2 of the Workers’ Party Manifesto 2006, which read: “The real power to determine the offender’s sentence shifts from the Courts to the prosecution who will decide which charge to proceed on to produce the appropriate sentence. This encourages plea-bargaining which makes justice less transparent as the exercise of prosecutorial discretion cannot be reviewed or appealed against.”

Although Associate Professor Ho Peng Kee, Senior Minister of State for Law had announced during the 2007 Budget Debate that more disclosure measures would be introduced, no official response has yet to be implemented.

Given unseen guidelines and unarticulated rationales, until more disclosure measures are in place, perhaps the sole comfort in prosecutorial discretion is our faith in the integrity of the people which operate the system.

As then former Attorney-General and now Chief Justice Mr. Chan Sek Keong emphasised in his speech during the 10th Singapore Law Review Lecture, delivered in 1996: “It is people who make a system fair and just, and not the reverse.”

Sook Zhen is a first year law student and the Deputy Editor of Juris Illuminae.

There are 2 widely-accepted models of criminal justice process, namely due-process and crime-control.

The due-process model embodies the ideology that it is better to let 10 guilty men go free than convict an innocent one. The presumption of innocence is therefore a central tenet of this model.

On the contrary, the main feature of the crime-control model concentrated on vindicating victim’s rights rather than on protecting the defendant’s rights.

The Criminal Procedure Code (Amendment) Act 1976 introduced elements of the crime-control model into Singapore. Prior to 1976, the criminal justice system pre-dominantly resembled the due-process model. Following the revolution of the Code, crime rate in Singapore was reduced significantly along with the diminishing hurdles against the conviction of criminals.

For a more detailed exposition, see Chan Sek Keong “Singapore’s Greatest Criminal Lawyer” The Straits Times (15 March 2008).

While criminal law practice in Singapore is largely confined to the statutory framework of the Penal Code (Cap. 224, 1985 Rev. Ed. Sing.) and the Criminal Procedure Code (Cap. 68, 1985 Rev. Ed. Sing.), it is not as insular or sterile as those unfamiliar with this area of law make it out to be.

The Penal Code standing on its own is directed towards a wide spectrum of harmful social behaviors. The criminal law also extends from offences against the person (eg. assault, murder) and traffic offences to white collar crimes regulated under other statutes. It may surprise an average citizen and indeed even some corporate citizens that breach of section 157 of the Companies Act (Cap. 50, 2006 Rev. Ed. Sing.) may subject a dishonest officer to criminal sanctions of a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months.

Nexus between Constitutional and Criminal Law

Another aspect of the criminal procedure that is not always obvious is the availability of constitutional arguments in a criminal court. In fact, even before the beginning of trial, Article 9(3) of the Constitution of the Republic of Singapore (1999 Rev. Ed.) confers on an arrested person three express rights in accordance with his fundamental liberties: (1) the right to be informed of the grounds of his arrest; (2) the right to consult counsel and (3) the right to be defended by a legal practitioner of his choice. Article 11 also confers protection against retrospective criminal laws and repeated trials. Collectively, these provisions ensure the constitutional rights of the person throughout the whole criminal process.

Constitutional arguments are also invoked when points of law arising from criminal procedure clashes with the constitutional rights of the accused. For example, in a case familiar to Public Law students, Haw Tua Tau v. Public Prosecutor [1981] 2 MLJ 49, the Privy Council weighed the effect of the amendments introduced by the Criminal Procedure Code (Amendment) Act 1976 depriving the accused’s right to make unsworn statements on which he could not be cross-examined, against his constitutional right to personal liberty under Article 9(1) of the Constitution. The defence counsel argued that the right to silence falls within the ambit of rules of natural justice and that the amendments to allow adverse inferences to be drawn against the accused if he refuses to offer testimony is unconstitutional. It was held that the amendments were constitutionally valid.

David Marshall – Constitutional and Criminal Advocate

It is therefore not a mere coincidence that Chief Justice Chan Sek Keong, in his tribute to David Marshall at the latter’s 100^th birth anniversary recently, appraised him as “Singapore’s greatest criminal lawyer” who was also the “best constitutional and administrative law advocate of the day” (Straits Times, March 15 2008).

CJ Chan’s emphatic point that Marshall’s ability “to produce creative and novel legal arguments based on the textual readings of the Constitution and the related statutes” highlights the notion that good criminal lawyers like Marshall have no qualms in raising fine points of criminal procedure and evidence based on the Constitution in order to exhaust all possible legal arguments to help the accused. It also highlights the assiduous attitude required of a criminal lawyer – indeed of every lawyer – to adequately discharge his duties in representing his client.

Marshall was such a master in the art of advocacy that rumours abound jury trials were abolished because it became too easy for him to convince the jury panels for acquittals! Although Marshall’s philosophy to “help free a human being from the threat of official murder (mandatory death penalty)” regardless of what he privately believed to be the truth is controversial, the ethos he held so firmly to as a defence counsel is presumably the main reason why CJ Chan regarded him as a “giant among pygmies at the criminal bar”.

Conclusion

Involvement in the Singapore criminal law, whether as a prosecutor or a defence counsel, may not be as narrow a window of practice as perceived. Marshall stood out as a distinguished criminal lawyer amid a very different socio-political background. The next giant of the criminal bar can be expected to blaze his own trail.

An Qi is a second year law student and the Editor of Juris Illuminae.

Criminal law plays a vital role in society by ensuring justice and fairness and serves to protect society from injurious acts. Essentially a coercive arm of the law which carries overtones of moral condemnation by society through the criminal label, criminal law differs from many other areas of law. Furthermore, the criminal law has always been the most visible aspect of a country’s legal system and is subject to much public scrutiny.

In Singapore, criminal cases are heard in the Subordinate Courts and in the High Court for more serious offences, with appeals to the High Court and Court of Appeal respectively. Singapore has abolished jury trials for criminal cases since 1970 for reasons including, inter alia, unsuitability of jury trials in Singapore’s racially fragmented society. When charged with an offence, accused persons can plead guilty or claim trial. A mitigation plea can be entered and a timely guilty plea can have mitigating value if it is a genuine expression of remorse, but not when there is no choice other than to plead guilty, or when public interest necessitates a deterrent sentence.

Although some fear that those in the lower income bracket of society will not be able to afford counsel and hence have a poorer chance at justice, pro bono schemes are increasingly accesssible to such persons. In 1985, the Law Society of Singapore started a Criminal Legal Aid Scheme (CLAS) which now covers 15 different statutes, including the Penal Code, for any offences other than those bearing the death penalty. Applicants undergo means testing and if they cannot afford a lawyer, a volunteer lawyer in private practice will be assigned to them. No fees would be charged although one may be required to pay for out-of-pocket expenses such as transportation. The CLAS currently only applies to persons who claim trial, though discretion is retained to allow representation in exceptional cases. The CLAS is currently funded through donations from members of the judiciary and the Bar, amongst others. For offences bearing the death penalty, the State will assign the accused a lawyer if he/she cannot afford one. Yet others fear that high prosecutorial success rates mean that the criminal trial process is inevitably weighed against accused persons. Although the figure may be high, it does not necessarily mean that there is a bias towards the prosecution in proving a case. Viewing this figure in a more positive light, it could mean that criminal proceedings are taken up against accused persons who had a weaker case and hence, that less time and money was spent pursuing convictions which are illusory.

However, in Mr Michael Hwang SC’s speech at the Opening of the Legal Year 2008, he recognized that a perceived bias in evidential matters might discourage legal practitioners from practicing criminal law. He raised two areas of particular concern, namely the statements recorded by the police from witnesses and the lack of discovery in criminal proceedings. Such evidential rules hamper justice and it is noted that amendments to the Criminal Procedure Code are underway.

The recent amendments to the Penal Code are a good indication that criminal law reform is still well and alive in Singapore today. Hopefully, criminal law reform will continue to thrive in order to serve the needs of society in promoting justice and fairness in the law.

Rachel is a first year law student and an associate editor of SLR.

“Pay them well,” Chief Justice Chan Sek Keong said in response to the shortage of lawyers in Singapore. “Greed works most of the time, even for the large majority of people in affluent societies.” It is no wonder then that the legal profession is languishing in Singapore when junior lawyers are paid more than double in Hong Kong – about S$11,650 a month compared to about S$4,000 in Singapore. Particularly, the Committee headed by Justice VK Rajah which was tasked to undertake a comprehensive review of our legal services sector has observed that “young lawyers are not attracted to criminal work, especially since this area of practice is not financially rewarding.” While courts are still efficient in leaving no backlog of criminal cases (based on the clearance rate of judicial matters mentioned by Chan CJ at the opening of the legal year) despite the smaller population of lawyers, the pressure to expedite cases can only add to the stressful and demanding nature of litigation work. Another reason which may explain why litigation attracts fewer entrants than its counterpart, corporate practice, is the perception amongst younger lawyers that more career opportunities and options are provided by corporate practice. These push factors, however, ensure that the lawyers who do filter into criminal litigation are truly passionate about their work and, as one of our Deputy Public Prosecutors put it, “appreciate the thrill of going to court”.

Sin Yan is a first year student and an associate editor of SLR.