The Singapore Law Review

GAVIN NG
First Year NUS GLB, Associate Editor, SLR

The iron fist in the regulation of political content in new media may just have loosened its grip - if Prime Minister Lee Hsien Loong were to get his way, that is.

“We are feeling our way forward step by step… looking for one stone at a time as [we] cross the river,” said PM Lee in his  National Day Rally speech this year, where regulating internet content with a lighter touch was one of the main topics addressed. The sentiments on this issue were subsequently echoed in the changes made in the Advisory Council on the Impact of New Media on Society (AIMS) report.

Although these changes have met with general approval from the online community, not everyone is satisfied. Blogger groups such as the “Bloggers 13″ have had no qualms criticizing these legal changes as merely playing catch up to an environment already flourishing under the radar.

For instance, while AIMS mooted for the removal of the requirement to register individuals or groups who discussed religion or politics, Bloggers 13 argued for a further abolishment of automatic licensing of all internet sites covered under the Broadcasting (Class Licence) Notification (Cap. 28, N. 1, 2003 Rev. Ed. Sing.).  Automatic licensing forces everyone online to adhere to Media Development Authority’s (MDA) Code of Practice, a code that arguably is vague on the definition of “prohibited materials”. Fear of contravening the Code and being fined inevitably results in self-censorship.

Nonetheless, the reality remains that there are more websites addressing religious and political issues than can be practically registered and monitored by MDA. Public Prosecutor v Koh Song Huat Benjamin [2005] SGDC 272 clearly illustrates the inability of MDA to keep up with the speed at which online activities take place. In fact, the authorities had only come to know of Koh’s hate speech on an online forum because someone had lodged a complaint. In acknowledgement of the limits of government regulation, AIMs recommended that the government should encourage “volunteerism” to monitor any instances of hate speeches or pornography being disseminated online.

Another recommendation made by AIMS was to change the Parliamentary Elections (Election Advertising) Regulation (Cap. 218, R.3, 2007 Rev. Ed. Sing.) to allow podcasts, videos and other forms of online media to be used during the election period. During the last General Elections, videos of various opposition rallies were uploaded to popular video hosting site Youtube as well as other sites - they were not prosecuted.

Concerning politically motivated films, AIMS recommended that s. 33 of Films Act (Cap. 107, 1998 Rev. Ed. Sing.) be liberalised as the wide phrasing, ironic as it may sound, would restrict creativity. Furthermore, the proliferation of modern technology circumvents restrictions in s. 33 as films banned by the authorities eventually find their way to an audience through video hosting sites, “Singapore Rebel” by Martyn See being a good example of this. AIMS, though not committing to any specific changes suggested either repealing, limiting the scope or gradually phasing out the section - a recommendation so bold that the only definitive suggestion was that the government should consult the public.

Repealing the section is a great leap towards deregulation but “Bloggers 13″ go further to suggest that s. 35 - which gives the Prime Minister the power to ban any film at his discretion - should also be removed. Their rationale is that even if s. 33 were to be repealed, s. 35 could functionally replace it, thus effectively defeating the purpose of repealing s. 33 in the first place. Perhaps the small steps suggested by PM Lee have to be made more quickly in order to catch up with the swift advancement of technology.

The final change recommended by AIMS is the amendment of s. 10 of the Electronic Transactions Act (Cap. 88, 1999 Rev. Ed. Sing.) to protect content hosts from intermediary defamation. This was on the condition that they do not actively participate in the defamation and remove the defamatory content once notified. Currently, only internet service providers are protected. Yet, with more sites hosting online content and more internet users posting online content, it has become increasingly difficult for these hosts to actively monitor all users and without protection, internet growth could become sluggish as hosts may start to reject users so as to minimise their liability.

The legal changes recommended by AIMS are significant in that they seek to reduce the restrictions imposed on the online community and there is also a clear goal of reducing legislation governing internet use. When it comes to restrictions that are hard to enforce because of technology, it may be wiser to limit or to even repeal these laws.

With fewer laws, there is less confusion about legal responsibility and this in turn could lessen hesitancy in speaking up online. This could eventually result in a citizenry that actually feels that there is actual engagement with policy and the government. The overall consensus seems to be that the online community is appreciative of the suggestions made by AIMS

yet, as Mohan, a member of Bloggers 13 and a third year law student at the National University of Singapore articulated: “The recommendations were forward looking, but the incremental approach is not necessary as there already have been incremental changes and there is no need to move slowly anymore.”

Perhaps it is time for the government to embrace the internet more fully and make progressive and not just reactive changes to the law.

AIMS recommendations

E-engagement: “Bottom-up” instead of “top-down” approached

Allow citizens to make suggestions instead of being consulted on issues selected by the government

Panel of Young Digital natives to serve as a consultative body

Online Political Content: Remove regulation to allow more discourse

Amend Broadcasting (Class License) Notification to remove registration requirement

Amend or repeal section 33 of Films Act to allow for more creativity

Amend Elections (Elections Advertising) Regulation to allow podcasts and vodcasts

Protecting Minors: Education as long term solution

Many possible dangers but legislation is a stop gap measure

Create educational courses for both young and old

Provide materials for parents, children and educators

Education on internet use for digital non-natives

Promote filtering resources like Family Access Network

Develop and encourage research for cyber safety

Promote Volunteerism to flag pornography and hate speech

Create dedicated coordinating agency for protection of minors from dangers of internet

Lift ban on the 100 websites, but maintain power to blacklist websites on a case-by-case basis transparently

Intermediary Defamations: Protect Content Hosts as well

Amend section 10 Electronic Transaction Act to cover content hosts from intermediary defamation

YVONNE POON
Second Year NUS Law, Associate Editor, SLR

The anonymity of the Internet poses a tricky problem for regulatory bodies but the myth of self-regulation may very well materialize in the form of Wikipedia’s genius.

“Eh, who are Freddie Mac and Fannie Mae…?”

“Dunno. Google it.”

The Internet in its infancy could perhaps never have envisioned how utterly dependent people would one day be on it and the sheer fact that “Google” has evolved from being a somewhat-kooky name for a search engine to a verb we use in our day-to-day conversations is evidence of the extent of the Internet’s reach. It has become our information superhighway and the answer to every question that perplexes our minds Yet every highway must have a set of rules to regulate its usage and people to enforce these rules, and the Internet is no exception. A clear example of this need for policing is epitomized in one of the most popular information portals-Wikipedia.

Wikipedia’s users can write “pages” on their pet topics, edit those written by other users, and access a vast online repository of knowledge-ranging from Dick Cheney’s biography to the origins of the word “gerrymander”. Wikipedia prides itself on objectivity and encourages discussion-a combination that is supposed to produce the most accurate view of matters.

But where opinions are concerned, emotion inevitably comes into the fray. In 2005, fuelled by world events like the Iraq war, a morass of backbiting ensued, centred most notoriously on the page of US President George W Bush. Users traded insults and fought to establish their own opinions by making numerous edits to his page. Most ironically, an edit was made from a BBC Internet Protocol address, too-changing President Bush’s middle name from ‘Walker’ to ‘Wanker’. Wikipedia administrators were forced to intervene-certain IP addresses (including that of the White House!) were blocked from editing, and more politically controversial pages were protected from edits. President Bush’s page is indefinitely locked; most recently, another notable editing restriction was also placed on vice-presidential candidate Sarah Palin’s page. Wikipedia has been turned from “the free encyclopedia that anyone can edit” to “the free encyclopedia that anyone can edit… sort of”.

The Internet tends to encourage irresponsible and sometimes malicious writing as the apparent cloak of anonymity leads some to think that they can get away with it. When coupled with the fact that these views are not subject to the filtering influence of, say, a print editor, one can see why regulation is more than necessary.

But who is to take on this regulatory role? Our closest local equivalent is the Media Development Authority (MDA) but its role has been focused on censoring more traditional forms of media-print ads, television, film and books. How is one to even begin regulating something as vast and boundless as the Internet? To give it credit, MDA tries its best: its website (www.mda.gov.sg) states that it uses a “light-touch regulatory framework” with co-operation from the industry’s content providers while implementing public education policies to promote online safety awareness. But this approach is not without its faults. Putting pressure on the industry to self-regulate is a top-down approach that does not reach the grassroots of citizen journalists/commentators and “public education” is rather passive.

This might lead one to the conclusion that perhaps MDA is not suitable for the regulation of new media. One can censor or edit film, or books, or art-but how does one bowdlerize ideas and opinions when they are voiced through means that leave almost no virtual footsteps in their wake?

Whichever organisation that takes on this responsibility does not merely filter thoughts and opinions; they also have to manage legal issues. Cases where the web has been used to perpetuate misdemeanours include Tay We-Jin v Public Prosecutor [2001] SGDC 220, where the accused had used the Internet to intimidate and threaten. Siva Shanmugam J had stated at paragraph 8 that “crimes involving the electronic medium also take on a grim perspective simply because they are easy to commit and that much harder to detect and prove”.

Is it time, then, for another body to step up to handle this specialized regulation? But then this begs a second question - how we are to carry out this moderation without stifling the freedom that so characterizes and renders popular the Internet?

Perhaps the answer lies (again!) in Wikipedia. Despite the portal’s “edit-wars”, Wikipedia’s system of having users police and monitor each other’s entries actually works. Unfounded allegations are rooted out; pages like “Bush family conspiracy theory” are swiftly condemned as “cruft” (information of poor quality) and deleted by user-voting. The best regulatory eyes are, after all, the same ones that read the pages most often, and the most efficient regulation carried out by the selfsame individuals that have the most contact with the Internet. Maybe this is the way forward-not top-down, intrusive government-implemented supervision, but a self-policing that starts from the grassroots.

MELANIE HONG
First Year NUS Law, Deputy Juris Editor, SLR

Some light has finally been shed on the otherwise murky arena of prosecutorial discretion- we now know what the Attorney-General Professor Walter Woon regards as crucial to meting out sentences.

As Professor Woon highlighted, the concept of justice is a fluid one. Between geographical boundaries and with the passing of time, it morphs to take on different appearances and what was considered just fifty years ago may no longer be considered as such in the modern context. With the notion of justice kept in the forefront of our minds, ensuring that the punishment meted out is befitting of the crime committed is a problem as old as justice itself - a problem that Professor Woon addressed at the 22^nd Singapore Law Review Lecture held on 19^th September 2008 at the Supreme Court Viewing Gallery attended by a 200-strong crowd of judges, legal practitioners and students.

Governing the passing of sentences in Singapore, according to him, are the four principles of retribution, deterrence, protection and rehabilitation.

There are two aspects to retribution: punishment and denunciation. Punishment, simply put, is when someone who has broken the law pays for his misconduct while denunciation is the signal sent to the society that this sort of behaviour is unacceptable. Thus, the more unacceptable the behaviour is, the harsher the sentence. Strict sentencing, if as harsh as the Japanese when it came to looters were during World War II, would also serve as a strong deterrent. Yet, the effectiveness of this, as Professor Woon noted, is limited when it comes to impulse crimes unless punishment is so harsh that potential offenders are induced to hold their baser instincts in check. The principle of protection is that if the offender is likely to commit another offence and pose as a threat to society, he should be put away. For this, preventive detention is one of the alternatives to a prison term and it usually applies to an incorrigible offender who shows no remorse and re-offends within a short time of his release.

Nonetheless, harsh punishments are not the only way to reduce crime and tThe alternative presents itself in the form of rehabilitation, which is meant to ensure that the offender does not commit such a crime again by making him more responsible. This is usually the main consideration when dealing with young offenders and probation sentences ensure that they are kept off the streets and prevented from mixing with wrong company and engaging in unlawful activities.

Even normal terms of imprisonment now have an element of rehabilitation, as highlighted by Professor Woon. Ironically, this militates against short sentences. During one particular Yellow Ribbon Project concert, a senior prison officer remarked that the minimum period for effective rehabilitation was 6 months and a jail term shorter than that had practically no rehabilitative value. Professor Woon thus commented in his address that one should not automatically assume that a lighter sentence is necessarily better if the accused is capable of reform.

When applying these principles in sentencing, one has to consider which one is paramount. If the primary consideration is deterrence, a sentence will usually be more severe and if protection is important, the charge will usually carry a custodial sentence.

One also has to distinguish between facts that affect the culpability of the accused and those that do not. In the case of a gang robbery involving hurt, factors that affect the culpability of the accused may be that he was not the ringleader and merely took orders or that he did not actually hit the victim. Factors involving the remorse of the accused or the fact that he is the sole breadwinner of the family do not affect culpability and are a plea for judicial mercy.  One of the most common factors affecting culpability is mental impairment but as Professor Won noted, it is often difficult to determine how much the impairment should reduce the subject’s culpability. Opinion differs from psychiatrist to psychiatrist and there is also the problem of how much one can rely on their reports. All these considerations allow the formulation of a sentence that is appropriate and at the end of the trial the prosecution will make a submission sentence highlighting to the judge the principles that apply, as well as any aggravating or mitigating factors. After the judgement is delivered, the prosecution will not appeal as a matter of course even if they feel that the sentence is too lenient. An appeal is only made if the prosecution felt that the wrong principles were taken into account or the principles were wrongly applied.

After all, the aim of sentencing is not to mete out the harshest punishment but to ensure that justice is served as best as possible.

HONG JIA
First Year NUS Law, Associate Editor, SLR

A few Saturdays ago, an uncharacteristic sight awaited the commuter who emerged from Clarke Quay MRT station: a man stands on a grassy knoll and is speaking to a wide swathe of people. Two people beside the banner hold placards that proclaim “World Class Service or World Class Profits”. The 150-strong audience is substantial enough that when they roundly cheer and applaud the speaker’s denouncement of transport policy, one might indeed wonder if this is the spark of public political activism long lamented to be lacking, or suppressed, in Singapore.

When Speakers’ Corner was first introduced in 2000, it initially drew large crowds but they soon dissipated. Unless there were specific exemptions, obtaining a police permit in order to speak was the default. But there have been some relaxation of these regulations. In 2004, the list of exemptions was expanded and public exhibitions and performances were no longer required to obtain permits. In September this year, the Speakers’ Corner was handed over from the police to the National Parks Board (NParks) and now demonstrations, as well as speeches, can be legally carried out without a police permit. Loudhailers are allowed and the restrictions on which hours of the day activities can be carried out have also been lifted. Prior to the said event organized by The Online Citizen, another group had accordingly taken the chance to stage a brief demonstration against maid abuse.

But despite the media spotlight cast by news of the relaxed rules, Saturday’s protest against the transport fee hike was not a huge rally. The physical space it took up was dwarfed by the rest of Hong Lim Park that remained occupied in a spirited game of Frisbee. Nonetheless, the speakers spoke with conviction and passion and their words clearly resonated with many of those present, cutting across age groups and demographics. The transfer of control to NParks symbolizes a step away from (literally) policing public expression, and the greater ease of staging a demonstration-no need to book a time slot in order to speak, no screening beforehand-will certainly facilitate civic groups’ attempt to reach out to the public. Given a topic close to Singaporeans, and sufficient publicity, it is likely that the Speakers’ Corner will be able to attract a certain audience and provoke critical thought upon hot-button issues.

However, it is too early to tell whether it will have any discernible effect in promoting active political engagement in our society.  Much will depend on how our opposition party politicians and rights groups choose to use this medium in the upcoming months, if they even choose to do so, as well as how much the public is willing to respond to issues of not only bread and butter, but also politics and civil rights.

Along these lines, although the Ministry of Home Affairs has indicated express permission for activities including effigy burning and gay pride events, gay rights activist Alex Au was quoted in Today as unwilling to “dignify tokenism”. Cynics still feel that whatever changes Speakers’ Corner undergoes, and indeed Speakers’ Corner itself, are merely tokenistic in nature. Public speech and assembly, after all, are still restricted to this quiet corner of Singapore. Despite the historical significance of Hong Lim Park as a political venue for election rallies and speeches in the 50s and 60s, today it is far from a hotspot of human traffic, limiting the potential audience of Speakers’ Corner.

In addition, the apparent freedom of expression is still restrained by the large sign mounted conspicuously at Speakers’ Corner reminding all that certain controversial topics such as race and religion still remain grimly out-of-bounds. If Dr Chee Soon Juan had attempted to discuss the issue of Muslim schoolgirls’ headscarves on Saturday, he would still have been arrested and fined for breaching the terms of speaking at Speakers’ Corner. Less than three weeks after the new rules came into effect, real estate agent Thamilselvan Karuppaya experienced the OB-markers for himself when his online registration with NParks led to a call from the police informing him he needed a Public Entertainment Licence for his speech in which he had meant to address the use of Tamil in public signs. His subsequent licence application was rejected and he had to abort his plan to speak.

On the more political side, Saturday’s speakers, while denouncing the policies made by the government, pointed to policy-makers’ lack of consideration of alternative views as a deeper problem of Singapore’s political arena. This may not be an issue that Speakers’ Corner can help resolve. In another potentially illuminating moment relating to the ban on holding political events outside of Speakers’ Corner, Prime Minister Lee Hsien Loong recently took part in a cycling event at West Coast Park, organized by the PAP Community Foundation. Last year, the Workers’ Party had had to apply for a permit for a similar cycling event in East Coast Park to commemorate its 50^th anniversary, which was rejected. When Nominated Member-of-Parliament Sylvia Lim asked whether PM Lee had been granted a permit to take part in an outdoors political event, it was explained that although the PAP Community Foundation was affiliated with the PAP, it was a registered charity and its non-political nature allowed the PM to participate without a permit. To some, this was perhaps another complication to the issue of public politicking, but then again, it was never a simple matter to begin with.

ANG HOU FU
Third Year NUS Law, Chief Editor, SLR

There is a wide variety of content available on the Internet, but what can one do with it? Or rather, what is one legally allowed to do with it? For example, would using a picture downloaded from a website as my MSN Messenger display picture be considered stealing? I could probably get permission to use the picture but it is more likely that I would just take my chances, After all, the probability that police will knock on my door for infringement of copyright laws or that  the creator of that picture will hunt me down, demanding “royalties” is not very high.

Nonetheless, there are some people who do not mind others using their work for free. Some people write their opinions on their blog for pleasure and would not mind you quoting them. Others record music because they enjoy playing music and think that you and your friends would enjoy it too. Others create stunning, almost professional, works of art and let you have it for free for that off-chance that they may be noticed and a hobby becomes more than an intangible reward.

How do you then separate the generous from the tight-fisted? Answer: the Creative Commons license which Singapore adopted the use of on 25 July 2008.

Such licenses allow copyright holders to specify how they want their work to be used. These range from attribution (”you can copy but leave my name on it”) to a virtual free for all (allowing derivative and commercial use). Although the use of such licenses is generally limited to the open source community (the people who created the Firefox web browser and lets you use it for free) and other large Internet projects like Wikipedia), hopefully the localisation of the license will allow widespread adoption.

One significant problem with the adoption of these licenses is the uncertainty over how much protection can actually be given. Content creators can rest easy in wake of the recent ruling by the United States Court of Appeals for the Federal Circuit in Jacobsen v. Katzer (see below) which confirms that even if the copyright holder allows his work to be used for free, the conditions stated in the license are still enforceable and may give rise to copyright infringement.
The use of such licenses therefore does not surrender all of the holder’s rights but only those he has chosen to give up. The Court’s decision will be persuasive here given that the copyright regimes in Singapore and the US do not differ significantly.

For most people who cannot afford the time to enforce their rights in courts, specifying how others may use their work is not futile. The moral argument that copyright infringement is stealing becomes stronger when your thief cannot rely on the ambiguity of what can be done with your content. Furthermore, by being generous, the resources available to society will increase, giving others more room to derive pleasure from the work of another. This in turn enhances the ability to derive new content from the work of others. This is especially so when there is no need to worry about whether you have been stealing and the contributors from whom you have taken from are protected.

For this writer, the immediate benefit of these licenses is that it shows that copyright laws are much more flexible than the all-or-nothing impression that arises from news of big media companies suing families and children. You can “steal” this idea without giving me due attribution - as long as you convince someone else around you to share his ideas and work with society.

Houfu is a third year law student and the Chief Editor of the SLR. You may find out more about the Creative Commons and its various licenses at http://creativecommons.org/. The Jacobsen decision can be referred online at http://www.cafc.uscourts.gov/opinions/08-1001.pdf.

BRYAN CHANG
Second Year NUS Law

Upon my first reading, I, as a proponent of positive discrimination, believed the author failed to distinguish her examples between positive and negative discrimination in what was otherwise an excellent article. However, my initial views have been tempered, or even completely changed by recent developments in Malaysia.

It is the first example stated in the article to which I would like to draw attention. Art. 152 of the Constitution enshrines the special status of the Malay population. In the modern context of Singapore, there is ample reason to adopt policies and laws in favour of a struggling minority. On the two most important fronts, economic and educational, Singaporean Malays have been proportionally under-represented and this issue was highlighted in the 2007 National Day Rally.

However, art. 152 enshrines the special status of Malays only, and not of all minorities. It is a remnant of historical necessity and as mentioned by the author: ‘outdated’. Racial discrimination, whether positive or negative, is bound to create tension and one look across the border would show you a clear failure of racial policies. In Malaysia, positive discrimination has been so firmly entrenched that it has fostered dependence and abuse, and as such failed in its initially virtuous aims. In my opinion, there is nothing wrong with positive discriminatory laws. However, the main problem as witnessed in Malaysia is the inability to have open mature discussion of racial issues without the discussion descending into a case of “us against them”. Any mention of the relaxation of Malay privileges has only ended in heated words and inaction.

This article is a clear sign that Singapore is heading forwards, and hopefully a precedent and model for a region still torn by inter-racial strife.

M. AIDIL
Third Year NUS Law, Deputy Chief Editor, SLR

Ms Ng, in her article in the August 2008 issue of Juris Illuminae, argued that the law discriminates. I write to respond to her opening salvo and allegation that Art. 152(2) of our Constitution which “recognizes” the special position of the Malays, and “protect, safeguard, support, foster and promote… Malay interests” (emphasis added) is racial discrimination. The unspoken assumptions and logical premises in her argument are that (a) discrimination is wrong, (b) laws must not discriminate i.e. everyone, in the absolute sense, must be treated equally, and (c) therefore any law that discriminates in any way is ‘bad’ law. These premises are too simplistic and do not recognize that there is a need for the law to discriminate between its subjects. Discrimination, in itself, is not morally objectionable or unlawful. Ms Ng will not quibble with the need for the government to impose national service on all males who are at least 18 years old because that base of discrimination serves a lawful state purpose (or, arguably, obligation) of defending the nation. While it is clear, from the legalistic manner of the “Preamble” of our Constitution (Article 1), our Constitution is meant to be a collection of ‘supreme rules’ from which other laws derive its validity from, Art. 152(2) is an exception to the form in that it is a statement of our political ideals, or more accurately, our political history. An examination of the provision’s wording and its structural position in the Constitution will show that the effect is largely psychological rather than legal - at best, legislative intention underlying Art. 152 is limited to the provision of financial assistance for education to Malays in Singapore (officially the government ceased issuing direct subsidies in 1991). It is not clear from Ms. Ng’s article but her argument seems to be that everyone ought to have equal rights before the law (Art. 12(1)). At first blush, Art. 152(2) may read like an affirmative action clause where the government is required to “protect, safeguard, support, foster and promote…interests” (emphasis added). However, in Art. 152(2), the word “interests” is so vaguely phrased and undefined by the Constitution or case law (Art. 152(2) was never litigated). Further, the word employed is “interests” and not “rights” which are ‘crystallized interests’ which deserve protection of ‘hard law’. More importantly, nothing in the Constitution bars the government from “protecting, safeguarding, supporting, fostering and promoting” the interests of other racial groups. The express positive constitutional adoption of this clause signifies its “symbolic” nature in reminding Singaporeans of the historical position of Malays as the natives of the land and “not a mandate to buttress Malay interests” (Dr. Kevin Tan, An Introduction to Singapore’s Constitution, pg. 176). Viewed from that perspective, Art. 152(2) is technically not a discrimination clause - not even a positive discrimination clause (or affirmative action clause). In fact, if Art. 152(2) is viewed in the context of Art. 152 and Part XIII of the Constitution (termed “General Provisions” and in particular, the procedural nature of Articles 153A - 155), it can be shown that Art. 152(2) was never meant to be a substantive discriminatory clause but rather a ‘procedural’ constitutional clause that is expressed in a manner that reflects the need to protect the minorities (Art. 152(1)) in a Chinese-dominated society. This ‘procedural’ constitutional clause was merely a device for the government to provide financial assistance for the educational needs of the Malays who were historically disadvantaged in education vis-à-vis other races. This interpretation which limits Art. 152(2) to educational assistance at best is obvious when one peruses the Parliamentary speeches which seem to reference Art. 152(2) as a facilitative device to provide education assistance to the disadvantaged natives (Malays) (Yang Di-Pertuan Negara Speech by Mr. Yusof Ishak, Parliamentary Debates, vol. 13, col. 3 at 19 (20 July 1960)).  While I am personally an advocate of meritocracy, I believe Art. 152(2) should be retained solely for symbolic reasons and as a historical reminder of the role of the Malays as natives. I would preemptively reject arguments that such symbolism can be phrased in a proper Preamble along the likes of the Indian Constitution because to have outright, what may be perceived as, ‘favoritism’ in the opening sentences of a Constitution will strike at the root of a multi-racial and meritocratic country. In final analysis, Art. 152(2) is not as obvious as it may seem at first blush and to label it as “discriminatory” right off the bat would do injustice to our history, our forefathers who framed the Constitution, and the role of the Constitution in a nation’s political and social development.

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.