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Contingency Fee Arrangements are payment arrangements, whereby the legal fees payable to a lawyer by a client is determined by the outcome of the case’s proceedings. Under these arrangements, it is possible for a lawyer to arrange to be paid an agreed percentage of the client’s recovery and is paid nothing if the action is unsuccessful. The high cost of legal proceedings often results in many people being unable to bring their cases to court, simply because they cannot afford to do so. Article 7 of the UN Declaration of Human Rights states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” These arrangements offer a practical avenue for lower income individuals to stand on an equal platform as the state, of proper legal representation, and have the same access to justice when faced with a criminal charge. Unfortunately, this is illegal.

The history of contingency fee arrangements can be traced to the case of Re Trepca Mines (No 2) [1962] 3 WLR 955. Then, Lord Denning held that “The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated; but, be that so or not, the law for centuries has declared champerty to be unlawful, and we cannot do otherwise than enforce the law, and I may observe that it has received statutory support, in the case of solicitors, in section 65 of the Solicitors Act, 1957.”

The concern here is that lawyers, having arranged to have their legal fees determined by the , will be tempted to cross legal and ethical lines for their own profit. This stance was written into Singapore’s statute, in the Legal Professions Act, where Section 18 of the Legal Profession Rules states that

  1. A legal practitioner or law practice must not enter into any negotiations with a client of the legal practitioner or law practice —

(a) for an interest in the subject matter of litigation or of any other contentious proceedings; or

(b) except to the extent permitted by any applicable scale of costs, for remuneration proportionate to the amount which may be recovered by the client in the proceedings.

Under this statute, lawyers can be charged if they arrange for any sort of payment structure with a client that allows them a financial stake in the outcome of the proceedings. This has remained a consistent stance in the Singapore Courts, where just this February the Law Society filed an action against one of its members for entering a contingency fee arrangement with his client.

Faced with the illegality of contingency fee arrangements, accused persons facing criminal charges who cannot afford legal representation can only turn to the Criminal Legal Aid Scheme.

To qualify for legal aid under the Criminal Legal Aid Scheme in Singapore, one must first pass the Means Test, a test which determines if an individual is in sufficient financial need to deserve legal aid. In order to pass this test, one must have a disposable income of not more than $10,000 per annum and a disposable capital of not more than $10,000. In 2013, only 17% of the population met this criterion, leaving 1 in 6 Singaporeans and PRs outside the coverage of the Scheme. Under the initial scheme, Only 431 people were given help in 2014 and 427 in 2013.

There have been efforts by Singapore’s Parliament to address this, and with the passing of the Legal Aid and Advice Act in 2013, the financial threshold that needed to be met was lowered under the enhanced Legal Aid scheme. The latest statistics from the Ministry of Law show that 2,433 people were helped under the enhanced scheme last year – more than five times the people who received help in 2014. While this shows good progress, the new scheme only covers 25% of the country’s population.

Steps toward the legalisation of contingency fee arrangements have already been taken in other countries. With the passing of the Access to Justice Act 1999 in the UK, the courts from which we took the basis of the statute in the first place have already moved to allow for such arrangements, albeit not in the context of criminal proceedings.  It has also been already partially legalised in Singapore under the Civil Law (Amendment) Act 2016, where third party funders of case proceedings are allowed, provided the solicitor does not directly gain any financial benefit.

The main issue that concerns the legalisation of such fees is that of legal ethics, where lawyers might abuse the system, crossing moral lines for the sake of economic gain. However, is there not a line already drawn with the current system of billable hours, where lawyers are “rewarded” for slow, inefficient work. Making the ethical decision for professional conduct might extend in a similar manner to lawyers, should the contingency fee payment be legalised in Singapore. If Singapore’s Courts and Parliaments find a way to reconcile the ethical and legal considerations of this issue, Singapore could take a big step toward having complete access to justice for its citizens.

Written in 2018 by Darryl Lau

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With reference to the Children and Young Person’s Act (CYPA), a juvenile is someone aged 7 or above and below 16 years old.

Over the years, the number of juveniles arrested have decreased, according to statistics provided by Ministry of Home Affairs, updated as of 4 April 2017.[1] However, a Straits Times article has also reported that the police have found a soar in juvenile arrests for shop theft and possession of offensive weapons. [2]

In fact, numerous cases of youth riots and their involvements in gang fights have surfaced as more teenagers turn to violence. In Oct 2014, 4 teenage boys aged 15-19 met up at a void deck at 3am to look for foreign workers to beat up and attacked a Chinese national by punching him several times before fleeing. These boys had also previously attacked an Indian foreign worker, two weeks prior to this. The 19 year old assailant pleaded guilty and was thus sentenced to 10 days in detention. In that same month, five youths aged 16 to 22 were arrested for rioting with a deadly weapon and attacking a 21-year-old man in Woodlands. In 2010, an infamous gang fight at Downtown East broke out between rival gangs that led to the slashing and subsequent death of a 19 year old Darren Ng.[3] More recently, 9 youths aged 14-16 were arrested for rioting in Woodlands on 27 April 2017.

Experts suggest that for youths, the tendency to partake in senseless violence and brutality could be due to an amalgamation of multiple triggering factors such as stress, angst, inebriation as well as their upbringing during the formative years. Violence at home would also expectedly perpetuate violent tendencies of a child in the future. “These youths seem to be people who have anger issues and choose to take it out on people who are less likely to retaliate,” suggests Dr Brian Yeo, a consultant psychiatrist at Mount Elizabeth Medical Centre, according to a report made by The New Paper. [4]

While adolescents committing minor offences may not be prosecuted but sent for rehabilitation instead, the government has taken a firmer stance against youth offenders that have committed serious crimes. “While rehabilitative options are available for young offenders who are suitable, the courts have also meted out more severe punishments if the offence was a serious one, including deterrent sentences to send a strong signal that such criminal behaviour will not be condoned nor taken lightly,” says Second Minister for Home Affairs Mr Masagos Zulkifli.[5] The high certainty of arrest and firm punitive measures are crucial in deterring youth crime, so prompt and effective enforcement by agencies in tandem with strict laws will be necessary. This is reflected in the punishments meted out for the death in the 2010 Downtown East gang fights, where the youth offenders were sentenced 3 to 12 years jail and 3 to 12 strokes of caning, depending on the severity of their involvement.

For minor offences, a second chance is offered through pre-court diversionary programmes such as the Guidance Programme introduced in 1997, which targets youth aged 10 to 19 that have committed minor crimes. This rehabilitative programme lasts for about 6 months and offers a community-based support network and successful completion of the 6 months means a police warning, which prevents youth offenders from having to face the stigma of court prosecution. In fact, Channel News Asia reports that approximately 9 in 10 youths stay crime-free 3 years after completing the programme, demonstrating the effectiveness of this policy.[6]

Aside from these pre-court diversionary programmes, the Children and Young Persons Act involves multiple clauses that protect youth offenders from that the blemishes that court prosecution has on their portfolio, which is vital in the reintegration back to community. CYPA s.35 restricts the publication of information relating to proceedings involving children and young persons to maintain a modicum of privacy and keep the identity of the youth secret.[7] CYPA s.41 stipulates that “words “conviction” and “sentence” shall cease to be used in relation to children and young persons dealt with by a Youth Court”. These clauses depict the sensitivity accorded to cases involving youth offenders and considerations for the child, to ensure that they are not tattooed with an almost-permanent stigmatisation associated to a court prosecution.

Written by Ng Cai Jia Felicia

[1] Ministry of Social and Family Development (https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Juvenile-Delinquents-Juveniles-Arrested.aspx)

[2] (The Straits Times, 2017) 14.2% drop in youth arrests in 1st half of 2017, but more nabbed for shop theft and carrying weapons.

[3] (The Straits Times, 2013) Couple lost son in Downtown East gang fight in 2010, but now save his friends

[4] (Hariz Baharudin, The New Paper, 2016) More young people in Singapore turning to violence

[5] (The Straits Times, 2015) Parliament: Young offenders who commit serious crimes ‘should be severely punished’

[6] (Channel News Asia, 2016) A second chance for young offenders

[7] CYPA s.35—(1) Subject to subsection (2), no person shall —

  • (a)  publish or broadcast any information relating to any proceedings in any court or on appeal from any court that reveals the name, address or school or that includes any particulars that are calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein; or
  • (b)  publish or broadcast any picture as being or including a picture of any child or young person so concerned in any such proceedings.
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We can be certain of one thing (and perhaps only this one in an increasingly uncertain world): there will, from now, always be business in cyber security – in fool-proofing the cloud, in blockchain technology, in coding, and everything else therein.

Data theft is a problem of our time. Truthfully a misnomer, data theft indeed does not only refer to depriving owners of their data, but also refers to making unauthorized copies of private, copyrighted data. Data theft most commonly happens when employees mishandle or purposefully leak information, the latter as most famously committed by whistle-blower Edward Snowden.

This new nature of crime is an extreme threat to corporations all around the world. They debilitate business operations and/or may distract businesses from “real” cyber-attacks such as hacking. However, when we are forced to acknowledge the nature of the internet in a world where most are digitally literate, we realize that “any threat to a computer … can affect the national security, essential services, defence or foreign relations of Singapore”[1]. In 2017, the Singapore Ministry of Defence (MINDEF) was hacked, and “the personal data of 850 national servicemen and employees [were] stolen”[2]. This was an enormous surprise, seeing as the Ministry had “on a daily level, experience[d] hundreds of thousands of cyber intrusion attempts ranging from simple probes to sophisticated cyberespionage efforts”.[3] This successful hack underscores the growing skill of hackers, our failure to keep up with too quickly evolving criminal techniques, and most of all, our own growing vulnerability.

In September of the same year, AXA, one of the most forefront insurance firms, also experienced a far-reaching cyberattack. “[P]ersonal data belonging to about 5,400 of [their] customers, past and present … was compromised”[4]; among that data: email addresses, mobile numbers, insurance policy numbers and dates of birth[5].

Once a rarity, data thefts and breaches are now part of our everyday conversation. “The SPF noted an increase in the proportion of cybercrimes to overall crime cases from 7.9 per cent in 2014 to 13.7 per cent in 2016”.[6] Criminals are realizing that there is new tenure given to them by countries such as ours, who premise most of our development on cyber infrastructure. The growing of ourselves into a “Smart Nation” is truly a double-edged sword.

In an attempt to ward ourselves against even more crushing attacks, the Computer Misuse and Cybersecurity Act (CMCA) was founded in 2013. A progeny of the Computer Misuse Act (CMA) of 1993, the CMCA is:

“An Act to make provision for securing computer material against unauthorised access or modification, to require or authorise the taking of measures to ensure cybersecurity, and for matters related thereto.”[7]


The CMCA is the main backbone of Singapore’s defence against cybercrimes. Its predecessor, the CMA, was enacted to criminalise unauthorized access or modification of data and other computer crimes, and was amended twice between 1994 and 2012 to introduce new offences that helps us keep pace with newer criminal behaviour. In 2013, the CMA was amended to include cybersecurity measures and transnational offences, both lurking dangers for Singapore. This amended CMA was simultaneously renamed the CMCA. This article aims to dissect its usefulness and role in our future.

First, there are still numerous cases that are not caught by the CMCA. The purview of the CMCA only includes nascent, non-traditional cases such as unauthorized access to data or hacking from an overseas computer. “[T]raditional crimes performed online such as online cheating, and cyber extortion” exist in the purview of the Singapore Penal Code[8], the Defamation Act[9], or the Undesirable Publications Act[10]. It is curious that Parliament did not expand the CMCA beyond its current 27 pages to include traditional cybercrimes. This may especially pose a problem when cases involve a large accumulation of offences across different pieces of legislation.

Not only this, ambiguity is littered throughout the CMCA. With this article’s subject matter in mind, we shall first direct our attention to the lack of a definition for “theft” in the CMCA. Despite data theft being omnipresent when discussing cybercrime, it is not mentioned explicitly in the legislation. Only the description of data theft is described in S.2(b) in the CMCA as the:

cop[ying] or mov[ing] it (data) to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held.


This definition’s narrow ambit is problematic. The CMCA’s definition of data theft only allows direct perpetrators to be punished, and does not advise on journalists, reporters, netizens, and other such parties using second-hand stolen data in the course of their work. For example, a news reporter who uses stolen private, encrypted data will not be held liable, even if they have clearly promulgated the principle of data theft. This does not mete out justice, nor serve to rectify the mischief the CMCA purportedly aims to rectify, which is that of “ensuring cybersecurity[11]. Had ‘theft’ been defined similarly to that in the Singapore Penal Code[12], We would think that journalists, reporters, netizens, etc. would be held liable for using information obtained by illegal means, regardless of whether they had committed that illegal act by their own resources. As the law currently stands, such parties cannot be charged – S.8A of the CMCA states clearly that the usage of stolen data is only an offence if the usage facilitates or leads to the commission of any offence under any written law. Unless stolen data used is for the purposes of blameworthy acts (for example, to achieve the ends of defamation or the breaching of the Internal Security Act), parties can use stolen data indiscriminately.

We find this ludicrous. First, this freedom should not be allowed to exist for second-hand data abusers, even if they are legitimate journalists or reporters. Secondly, this allows the public at large to leverage on breached cybersecurity for profitability sake. It is thus not only a question of ethics, but also a question of drafting. Ambiguities like this would render legislation such as the CMCA useless, or ineffective, to eradicate cybercrime. This was exactly the main concern of Mr Murai Pillai in Parliamentary Debates Singapore: Official Report, vol 94 (3 April 2017). Mr Desmond Lee then later tried to assuage Mr Pillai’s worries in the same Debates, stating:

There is nothing wrong with the journalist reporting on the hacking incident, or the researcher who works with the hacked personal information for research purposes. But it is doubtful if they would ever need to disclose the hacked personal information itself, as part of the report or research findings. For example, there is no need for them to publish details such as hacked credit card numbers, as part of the report on the hacking incident, or the research findings. Depending on the circumstances, indiscriminately making available hacked personal information may amount to an offence.


However, we are unconvinced. Legislation should be able to stand on its own legs, and not crumble under any ambiguity. The failure to codify what the “circumstances” that constitute an offence are, courts will be forced to enforce arbitrary, uncertain standards. This does not bode well for the future of the CMCA.

Next, the usage of “Minister” in 12A(2), 15A(1), and 15A(4) of the CMCA also gives rise to much uncertainty. The CMCA accords an individual Minister supreme authority to oversee investigative bodies, much more than the courts or any another government body, such as the Singapore Police Force. This is much unlike the United States, where the Attorney-General governs investigators such as the Federal Bureau of Investigation and Court Judges may review such powers as they wish[13]. There exists an airtight check-and-balance in the United States system of investigation into such crimes. However, there seems to be a lack of safeguards to ensure utmost fairness and certainty in protecting cyber privacy in Singapore. We argue that an advisory or supervisory committee should be set up to review the decisions of the Minister, given the “sensitive, private or corporate”[14] nature of information breached through data theft.

Next, the CMCA defines cybercrimes that cause “serious harm in Singapore” worthy of criminality in 11(4) as that which causes:

  1. illness, injury or death of individuals in Singapore;
  2. a disruption of, or a serious diminution of public confidence in, the provision of any essential service within the meaning of section 15A(12) in Singapore;
  3. a disruption of, or a serious diminution of public confidence in, the performance of any duty or function of, or the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board; or
  4. damage to the national security, defence or foreign relations of Singapore.


This does not assuage worries for companies that are: not only as equally vulnerable as any other Singapore government service, but also equally important to either the cyber health of Singapore or public confidence in the barriers Singapore has erected for cyber attacks. This limits the effectiveness of the CMCA, and goes against Parliament intention to eradicate cybercrimes. We are of the view that the CMCA should expand its reach to protect corporations, especially large ones such as AXA, from debilitating data thefts. A criminal who hacks into a Singapore government service should be held to the same standards of liability as one who hacks for the sake of injuring vulnerable Singaporeans.

Last but not least, there is no mention of intent in the CMCA.  No allowances are made for uninformed offenders. On one hand, this will prove to be a difficult obstacle for potential defendants who operate under a bona fide mistake. On the other, this might be in line with parliamentary interest to effectively eradicate cybercrime in Singapore, regardless of whether it was done with malignance. It might also serve as a powerful incentive for employees and companies to educate themselves on these codified offences.

All in all, however, the CMCA is definitely a step in the right direction for Singapore, who will only become more reliant on cyber infrastructures in the next 50 years of our nationhood. Together with the Cyber Security Agency at the frontline, we believe that the CMCA will definitely deter cybercrime and bring us closer to the envisioned future of a country immune to crippling cyberattacks despite all its current flaws.

Written by Chow Ee Ning, class of 2021

[1] Assoc. Prof. Ho Peng Kee in Parliamentary Debates Singapore: Official Report, Vol 76 at Col 3321 (10 November 2003)

[2] Loke Kok Fai, Channel NewsAsia (28 February 2017). “MINDEF Internet system breached; data stolen from national servicemen, employees”, accessed: http://www.channelnewsasia.com/news/singapore/mindef-internet-system-breached-data-stolen-from-national-servic-7617146.

[3] Mr Ong Ye Kung (for the Minister of Defence) in Parliamentary Debates Singapore: Official Report, Vol 94 (3 April 2017)

[4] Claire Huang, The Business Times (7 September 2017). “AXA policyholders’ data breached after cyber attack”, accessed: http://www.businesstimes.com.sg/companies-markets/axa-policyholders-data-breached-after-cyber-attack.

[5] Ibid.

[6] Security Agency of Singapore (2017). “Singapore Cyber Landscape 2016”, accessed: https://www.csa.gov.sg/~/media/csa/documents/publications/singaporecyberlandscape.ashx?la=en.

[7] Computer Misuse and Cybersecurity Act (Cap. 50A, 2007 Rev. Ed. Sing.)

[8] Penal Code (Cap 224, 2008 Rev. Ed. Sing.) at sections 415

[9] Defamation Act (Cap.75, 2014 Rev. Ed. Sing.) at sections 5 and 6

[10] Undesirable Publications Act (Cap. 338, 1998 Rev. Ed. Sing.) at sections 11 and 12

[11] Computer Misuse and Cybersecurity Act (Cap. 50A, 2007 Rev. Ed. Sing.)

[13] United State Code. “The Attorney General’s Guidelines for Domestic FBI Operations”, accessed: https://www.justice.gov/archive/opa/docs/guidelines.pdf.

[14] Mr Ravindran in Parliamentary Debates Singapore: Official Report, Vol 76 at Col 3321 (10 November 2003)

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The Criminal Procedure Code (CPC) of Singapore is a part of Singapore’s legislation that details the procedure for the administration of criminal law in Singapore. Through a study of the CPC, one can better understand arrest procedures, as well as the rights possessed by arrested individuals.


Types of Offences

There are two types of offences in Singapore: arrestable and non-arrestable offences.

An arrestable offence is one in which the police can legally arrest the offender without a warrant. However, for non-arrestable offences, the police are required to be in possession of a warrant before they can make an arrest.

The First Schedule of the CPC contains a comprehensive list of offences, along with additional information stating whether or not the offence is an arrestable one.

Some examples of arrestable offences include:

  • Criminal Conspiracy
  • Offences against the state
  • Genocide
  • Piracy
  • Unlawful assembly
  • Impersonation of a public servant
  • Counterfeiting currency
  • Affray
  • Fouling the water of a public spring or reservoir
  • Rash or negligent driving
  • Murder
  • Kidnapping


In the case of a non-arrestable offence, such as mischief or voluntarily causing hurt, a police report must first be made. The police conduct preliminary investigations before bringing the case before the courts. The court will then decide whether or not to issue an arrest warrant.

How an arrest is conducted

Part IV of the CPC details the rules surrounding the actual arrest process.

According to section 75 and 76 of the CPC, the police officer making the arrest is required to physically “touch or confine” the body of the arrestee unless he or she consents to a verbal arrest. If the arrestee resists, the police officer is entitled to the use of reasonable force to complete the arrest, but must not restrain the arrestee more than necessary to prevent escape.

Section 78 of the CPC permits a police officer to search the person upon arrest as well as any place belonging to the arrested person or any other individual with a connection to the offence. Under section 83 of the CPC, a woman may only be searched by another woman. This is done to protect the modesty of the woman being searched.

Rights of the arrested person in custody

When an arrestee has been brought to a police station or detention site, he or she is allowed to contact his family or a lawyer after a reasonable period of time after the arrest. The arrestee’s right to a lawyer is enshrined within Article 9(3) of the Constitution of Singapore, which reads “Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

According to Article 9(4) of the Constitution of Singapore, as well as section 68 of the CPC, the police can detain a person for only up to 48 hours from the time of arrest, after which, the person will be released unconditionally if the police are unable to determine that he or she has indeed committed an offence. Otherwise, the person will be brought to court or released on bail.

Taking of statements

During investigations, the CPC authorizes the taking of two types of statements by the police: witness statements and cautioned statements.

Witness statements are provided for under section 22 of the Criminal Procedure Code. Section 22 allows the police to orally examine any person believed to have knowledge of the facts and circumstances of the case being investigated. The person being examined is bound to state the truth about the facts of the case, but need not mention things that might expose him to a criminal charge. Such a statement made by the person is known as the witness statement. The statement made by the person must: be in writing, be read to him, and be signed by him.

Section 23 of the CPC deals with cautioned statements. After investigations, the police may decide to press charges against the arrested person. In this case, as per section 23 of the CPC, the arrested person must be served with and have read to him a notice in writing as follows:

“You have been charged with [or informed that you may be prosecuted for] —

(set out the charge).

Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”

The arrested person has the right to remain silent. However, his silence or refusal to give a cautioned statement will be recorded.

According to section 258 of the CPC, which deals with the admissibility of the accused’s statements, there are certain circumstances in which a statement obtained from an accused person may be deemed inadmissible in court. For instance, a statement cannot be used as evidence in court if it is made to a police officer below the rank of sergeant. The court will also refuse to admit the statement of an accused if the making of the statement appears to the court to have been caused by any inducement or threat.


Written by Eugene Tai

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Justice is empowering.

And for many a law student, coming to law school is as much about benefitting from its pronounced practical edge as it is about a commitment to high ideals. Many come to law school because they want in some capacity to help the elderly, children, victims of injustice – of our community and the world.

Yet, “justice” is elusive in our legal profession today. When we talk about access to justice, we acknowledge that the playing field is unequal. The turf is titled to favour the rich.

This brings us to the important question: Is our legal system designed only for those who can afford it?

 

Sobering statistics in Singapore

The numbers do not lie. Vast percentages of litigants who enter our courts go unrepresented.

At the Family Court in 2012, more than 96% of applicants and 99% of respondents for maintenance and personal protection orders went unrepresented. Similarly, 80% of defendants for divorce cases appeared without legal representation (The Straits Times, 21 June 2012). These statistics hail from the Subordinate Courts, where approximately 350,000 cases are heard annually – more than 95% of the total caseload in Singapore.

This is worrying, especially since research confirms that litigants-in-person are much more likely to commit serious mistakes in court. Where nuanced claims like alleged employment discrimination are concerned, manuals on self-representation do not go far enough to help. Legal expertise can make or break a case.

We think George Hausen, executive director of the Legal Aid of North Carolina, put it best when he said, “[The] assistance [litigants] receive with filing and procedure doesn’t guarantee them access to justice, just access to the courthouse door.”

In a survey conducted by the Subordinate Courts revealed that more than half (55%) of Singaporean litigants-in-person said that they could not afford a lawyer while a smaller proportion (29%) felt they did not require professional legal services. These numbers speak to the reality that many litigants fall within the proverbial “sandwich class” – they do not qualify for government legal aid but cannot finance litigation on their own. It is important to mention that this statistic only represents the opinion of those who actually step into our courts. We do not know how many civil or criminal legal needs of low-income Singaporeans go unmet altogether.

 

What’s being done now?

One of the most promising initiatives that have burst onto the scene is the Community Justice Centre (CJC).

The CJC is an independent charity. It came into being in 2012, and is a product of the cooperation between the State Courts, Ministry of Law, Ministry of Social and Family Development, Tan Chin Tuan Foundation, and the Law Society. It operates to ensure that self-represented litigants understand the jargon and complexity of legal rules, present their case or cross-examine witnesses effectively, and understand judicial rulings in their cases.

On-site lawyers at the Centre render assistance from simple claims, like for breach of contract, to more complex issues, like child custory or cross-border maintenance claims.

Mr Amolat Singh describes the CJC as “a temple of justice to which many a weary and bewildered traveler on the highway of life beats a path seeking some answers, some clarification or just making some sense of the legal morass they find themselves in.”

In 2013, the HELP (Helping to Empower Litigants in Person) Centres under CJC served a total of 3,981 litigants-in-person seeking assistance in various court-related issues.

Another initiative the Civil Justice Division has delivered is eLitigation for civil and family cases. It is a big step towards realising technology’s promise in the legal pro bono sector. eLitigation provides court users with a single accesspoint for all the active case management of court matters. It also serves as a one-stop portal for all case-related interactions with the Courts. With this, advice and information is provided to a far wider community.

 

What more can be done?

The abovementioned schemes are not exhaustive. The Courts have invested heavily in ramping up legal assistance, and we as a society have become better for it.

But while these schemes are making waves, they continue to face manpower crunches and infrastructure constraints. Consequently, each litigant-in-person has a very limited amount of consultation time. Sometimes, these pockets of consultation are insufficient to help move their cases forward. Thus the obvious path forward, to expand the CJC, would be involving more lawyers in on-site volunteering.

There are also other ways to increase the capacity of our justice system.

For one, Singapore can consider having a list of pro bono lawyers for representation, not merely advice, at the convenient access of litigants-in-person. Similar initiatives have been introduced in other common law jurisdictions to augment access to justice for the poor. In Australia for example, the federal courts provide a Referral for Legal Assistance Scheme. Each of the Australian courts has a list of pro bono attorneys who have agreed to provide pro bono work.

Yet, we should be thinking beyond traditional pro bono strategies. The unsatisfactory state of our pro bono climate is proof itself of the unsustainability of a purely pro bono model.

In order to bridge the chasm between the legal needs of the lower-income and the great resource that is our lawyers, we need to be more tactical about approaching legal aid. We need programmes or new types of firms that conduct “low bono”, which provides legal aid at a lowered or even nominal cost.

“Low bono” is already gaining traction. A great example of this might be the D.C. Affordable Law Firm created in 2015 by the Georgetown University Law Centre. Its goal, loyal to its name, is to provide affordable legal services to DC residents whose incomes fall between 200-400% of the Federal Poverty Level (annual income of approximately USD$23-46k). It helps big firms commit to low-bono work. Since its inception, it has already been described as a “replicable economic model that rewards doing what’s right”.

Of course, this model still involves lawyers who are willing to sacrifice and take lower salaries for challenging work. But such lawyers are, and have always been, the biggest funders of a nation’s access to justice.

In order for the justice system to be effective, we will always need lawyers who have “altruism combined with realism, knowledge of fundamental principles and capacity to apply them, and … enthusiasm for that which is fine and inspiring” (Justin Miller, dean of Duke Law School 1930-34).

All in all, we live in an economically advanced country, with an acute awareness of one’s personal and property rights as well as a greater strain on marriage, meaning that legal assistance will only become more in need in the years to come. The dream is to enable access to justice at every strata of society.

Written in 2016 by Limin Chuan

 

References

  1. Chan, Gary. Access to justice for the poor: The Singapore judiciary at work (2008). Pacific Rim Law & Policy Journal Association. Retrieved from <https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/543/17PacRimLPolyJ595.pdf?sequence=1>
  2. Yeo, Adrian. Access to justice: A case for contingency fees in Singapore (2004). Singapore Academy of Law Journal volume 16. < http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/334/2004-16-SAcLJ-76-Yeo.pdf>
  3. Margaret Hagam. Open Law Lab, Access to Justice Innovations. <http://www.openlawlab.com/project-topics/access-to-justice-innovations/>
  4. Ashley Chia. “Justice center to aid the self-represented”, The Straits Times. 21 June <http://tanfoundation.com.sg/wp-content/uploads/2014/09/TODAY-21.6.12-Justice-centre-to-aid-the-self-represented.pdf
  5. State Courts Annual Report 2013. <https://statecourts.gov.sg/Resources/Documents/AnnualReport2013.pdf>
  6. “Access to justice for litigants in person through community partnership” Community Justice Centre. Annual Report for Financial Year 2013. <https://www.sggives.org/CheckAccess.aspx?url=/attachments/charity/1231b03e-6e00-4ba1-a2fa-5c96fe61905d.pdf>
  7. “Access to justice for litigants in person through community partnership” Community Justice Centre. Annual Report for Financial Year 2014. <http://cjc.org.sg/images/CJC-AR%202015%20(A4)-R5.pdf>
  8. “Can we close the justice gap? Taking Stock and Taking action.” Duke Law Magazine, Spring 2015 Volume 34 No 1. <https://law.duke.edu/news/pdf/lawmagspring15.pdf>
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Should suicide be criminalised? Should we repeal s 377A of the Penal Code? Should adultery be criminalised? Should we permit euthanasia?

When there is debate over these controversial, or not-so-controversial, issues in Parliament or among the public, the bottom line is—What is the basis for criminalisation? There are two main approaches to justify criminalisation—a liberal approach and a communitarian approach.

Liberals are often described as viewing individuals as atomistic and autonomous[1]. From this perspective, individuals stand apart from one another, and each has supreme rule over his or her own life through the use of ‘rights’ to pursue their personal notions of what is ‘good’. As such, the onus is placed on the government to provide a justification if it seeks to restrict an individual’s freedom, or rights.

Because of the emphasis liberals place on individual’s ability to pursue their personal notion of what is good, they do not think that “morality” should determine societal standards. Instead, most liberals endorse the harm principle as the basis for criminalization[2]. The harm principle says that an action should only be criminalised if it harms another person. However, it is unclear how “harm” is defined, as there can be direct and indirect, physical and non-physical (e.g. emotional) forms of harm.

The communitarian approach, on the other hand, regards persons as social beings that form part of a community. This may be contrasted with liberalism’s assumption of human nature as atomistic or individualistic. As social beings, we affect one another and one’s pursuit of his perceived “the good life,” affects another’s pursuit. Hence, communitarianism balances individual rights with considerations such as economic, social, and shared values. These shared values are communally articulated as values to uphold and promote.

Besides promoting the common good and shared values, a communitarian may assert that laws educate[3]. This is especially true because, as people who live in a community, even our “private” acts may pollute the moral ecology[4] and cause harm. An often used example is how pornography invokes sensual desires with self-focused instant gratification and, in doing so, undermines fidelity in a marriage, weakening the nuclear family.

The Singapore government has subscribed to the communitarian approach and has chosen the following shared values to be published in the 1991 Shared Values White Paper:

  • Nation before community and society above self;
  • Family as the basic unit of society;
  • Community support and respect for the individual;
  • Consensus, not conflict; and
  • Racial and religious harmony.


A case study: s 377A

In 2007, the Parliament put forth a bill to amend the Penal Code, which included the proposed repealing of s 377A, the section criminalising sexual intercourse between males.

The communitarian side of the argument was well-articulated by the then Nominated Member of Parliament, Associate Professor Thio Li-Ann, a constitutional law professor. She contended that keeping s 377A upholds national interest in protecting what is precious and what sustains a “dynamic, free and good society.”

On the other side of the debate, Michael Hor, another law professor, articulated that the action criminalised under s 377A does not harm anyone. The lack of harm is further supported by the government’s pronounced non-enforcement. Because there is no harm, the only reason why s 377A is retained is because people are offended by its being repealed. He points out that this is inconsistent because the non-enforcement will not ensure that people will not be offended (the action can still continue unchecked). Furthermore, “It demeans the individual to have his behaviour, which is presumably important to him and which the government does not think is harmful to society, to be labelled a crime, and him a criminal.”

This shows how the liberal approach and the communitarian approach may stand at odds with one another. They are not just different from their starting positions as discussed earlier, but their approaches may reach completely different conclusions.

Euthanasia

A subtler case in which this clash can be seen is euthanasia.

An argument for decriminalising euthanasia rests on autonomy to make choices on life and death[5].  This is consistent with the liberal approach that values choice and rights above other competing values, as this notion of the “right to die” has been traced to the belief that “man is the master of his own destiny.”[6]

On the other hand, the Court of Appeal in UK, when confronted with this issue,  said, “[T]he mere fact that there may be rights to autonomy and to be treated with dignity does no more than raise the question whether they should be given priority in circumstances like this”[7]. In other words, the Court of Appeal was highlighting that the mere existence of dignity and autonomy does not mean that it should be given top priority; rather, the existence of these competing values raise the question whether more weight should be given to them than to the sanctity of life.

The contrast between “man is the master of his own destiny” and the view taken by the Court of reveals the value judgement involved in many of the decisions that governments face. It is by this open acknowledgement of a value judgement that allows the public to engage on a discussion that truly reflects the value-laden reality of a decision.

Adam Lambert’s Performance in Countdown 2016

Before Countdown 2016 in Singapore, there were two opposing petitions: one in opposition to Adam Lambert performing at that event and the other in support of his performance. Interestingly, both sides of the controversy purported to protect family values.

The petition opposing his performance:

Allowing Adam Lambert to perform as the star of Countdown 2016 shows disregard for the values of a majority of family-centric Singaporeans who have consistently resisted the promotion of western liberal ideas about family values and societal models. (emphasis added)

The petition supporting his performance:

The opposing petition are anti family and anti Singaporean values because their discrimination harms family members. We support real family values and real Singaporean values by being modern and inclusive. (emphasis added)

It is interesting to observe that while both sides claimed to promote “family values,” it may represent vastly different ideals.

Conclusion

Although competing views exist, this author views the communitarian approach to articulating and balancing competing considerations as preferable in the arena of public debate.

In this author’s view, although liberalism sets itself out as being “neutral,” letting people make their own choice, the action of being “neutral” is not actually value-neutral since the liberal values of freedom, choice, and fairness are themselves values too.[8] In a public discussion, the liberal values of tolerance and choice should come to the forefront, just as transparently as any other value that society may value, e.g. sanctity of life and family values. How much weight society should place on the different values should be articulated. In this regard, it is the communitarian approach in the public arena that allows for the needful and welcome conversation which liberalism may try to circumvent.

Written in 2016 by Chua En Ning Janna

Bibliography

  1. AP Simester, JR Spencer, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart, 2010)
  2. Chua, Lynette J. Kher Shing, “Saying No: Sections 377 and 377A of the Penal Code.” Singapore Journal of Legal Studies [2003] 209–261.
  3. Diana Fletcher, “Euthanasia—Law At the Edge of Life.” [1986] 7 SingLRev 22-23.
  4. George, Robert P. (2000) “The Concept of Public Morality,” American Journal of Jurisprudence: Vol. 45: Iss. 1, Article 2. <http://scholarship.law.nd.edu/ajj/vol45/iss1/2>
  5. Hor, Michael. “TOC Feature: 377A – To Prevent What Harm? – The Online Citizen.” The Online Citizen. 10 Oct. 2007. Web. 06 Feb. 2016. <http://www.theonlinecitizen.com/2007/10/377a-to-prevent-what-harm/>.
  6. Lee, Yvonne C. L. “’Don’t Ever Take a Fence Down Until You Know the Reason it was put up’”—Singapore Communitarianism and the Case for Conserving 377A” Singapore Journal of Legal Studies [2008] 347-394
  7. Nicklinson v Ministry of Justice [2013] EWCA Civ 961 <http://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html>.
  8. Parliamentary Debates Singapore Official Report, vol 83, col 2242 (22 October 2007) (Prof. Thio Li-ann).
  9. Pilcher, Rachel. “Petition To Stop Adam Lambert Performing In Singapore Closes.” Petition To Stop Adam Lambert Performing In Singapore Closes. Yahoo!, 30 Nov. 2015. Web. 06 Feb. 2016. <https://sg.celebrity.yahoo.com/post/134263167419/petition-to-stop-adam-lambert-performing-in>.
  10. Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.
  11. Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.

[1] Yvonne Lee p. 350

[2] Lynnette Chua p. 213 and Simester p. 638

[3] Yvonne Lee, using R.A. Duff’s Trials and Punishment as support

[4] The concept of moral ecology is mentioned in Yvonne Lee’s article at p.379 and elaborated by R.P. George. It was also used by Prof Thio Li-Ann in her speech.

[5] Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.

[6] Diana Fletcher, “Euthanasia—Law At the Edge of Life.” [1986] 7 SingLRev 22-23.

[7] Nicklinson v Ministry of Justice [2013] EWCA Civ 961 at [54], emphasis added

[8]Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.

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At the point when this article was written, less than two months into 2016, two cases of maid abuse[1] had already been reported in the local news. In one case, a 75-year-old retiree suffering from schizophrenia and depression was found by the court to have poured bleach and slapped a Foreign Domestic Worker (“FDW”). During the 10 months working for the accused, the FDW lost 10 kg and eventually suffered serious injuries from an attempt to escape her abusive employer by climbing out of the window of the condominium apartment she was working in[2]. This article aims to identify and clarify some commonly held misconceptions amongst Singaporeans on the subject of maid abuse in relation to the law. Firstly, this article will challenge the misconception that “maid abuse” contemplates only physical abuse. Secondly, it will explore the defence of mental illness and explore some cases where it was successfully or unsuccessfully raised by the accused. Finally, it will tackle the tremendously flawed idea that FDWs are unable to do anything to help themselves when faced with abuse, and show how FDWs can in fact be instrumental in the successful conviction of abusive employers.

Context

Reporter Mr Lee Han Shih, in an article for the Business Times, very aptly observed that “[m]any maids come from a background which carries with it a natural fear that the police are working for the rich, and are reluctant to seek their protection even when the opportunity presents itself”[3]. This illustration is but one of many that show how misinformation or misunderstanding of the law and those who enforce it unwittingly allows for abhorrent abuse to carry on undetected, and obstructs the law from achieving its intended purpose of protecting the vulnerable in society. In recent years, there has been an upward trend of cases of maid abuse reported, with 1,330 cases in 2012 rising to 1,404 in 2014[4]. There is an urgent need to arrest this disturbing trend, and this article humbly hopes to contribute to the solution by addressing misinformation in the hopes that employers would better understand the long arm of the law, and FDWs would also understand how they can be better equipped to be part of the solution to their own plights.

Misconception 1: Emotional abuse is not maid abuse

It is a common wrongly held belief that emotional abuse of FDWs is not against the law. In reality, emotional abuse is often central to the sentencing of abusive employers found guilty by the law. In the recent case of PP v Rosman bin Anwar and another[5] (“Rosman bin Anwar”), the High Court allowed an appeal by the public prosecutor that a sentence of 2 weeks for an abusive employer was “manifestly inadequate” given the extent of emotional suffering by the FDW. As a result, the sentence was increased threefold to 6 weeks. The Court of Appeal in the case of ADF v Public Prosecutor and another[6] similarly recognized the importance of emotional abuse to the severity of the sentence meted out. In this case, an employer used his identity as a police officer to intimidate the FDW in his employment and subjected her to dehumanizing practices such as keeping a notebook secured around her neck with a rubber band in which she had to record her every action and meal throughout the day. It is clear that the law takes emotional abuse seriously, and that it is an important consideration when courts are deciding on the severity of sentences.

Misconception 2: Mentally ill employers will always be able to escape harsh sentences even if found guilty of maid abuse

In the wake of the widely publicized case late last year – where an employer allegedly starved the FDW employed by her and attempted to justify the abuse to be a result of various mental conditions[7] – this point aims to address some skepticism that might be held by the public surrounding the defence or mitigating pleas of mental illness in maid abuse cases.  The justification for considering mental conditions in cases of maid abuse is well explained in Soh Meiyun v PP[8] (“Soh Meiyun”), where in referring to the accused who was suffering from extremely severe depression and Obsessive Compulsive Disorder, Justice Chao Hick Tin observed that “the more serious an individual’s psychiatric problems, the greater the strain and stress she is put under by events in her life.” The learned Judge further went on to note that in some instances, the effect of such a strain on the individual would allow emotions to reach breaking point more easily, and in such instances where the breaking point is reached and the employer lashes out, the degree of harm she is likely to cause is greater. In such situations, it may be justified to find that the accused had lost control of their action, and as such did not intend to cause the harm that resulted. The position of law is clear that the Courts will recognize mental illness as a defence where it is justifiable and the elements are proven.

It must be noted however, that courts are extremely discerning when deciding whether to permit such a defence or mitigation. In three cases cited in the aforementioned case of Soh Meiyun, the courts still imposed the maximum sentence for the charges made in spite of proven mental conditions suffered by the accused. In PP v Koh Soon Kee, and PP v Kiew Seok Inn, the defences of major depression were not accepted, while in PP v Pooja Tanwani, claustrophobia was found to be insufficient to justify abuse. The factor that distinguished these cases from that of Soh Meiyun was that the accused were unable to prove that the mental illnesses were of such a great severity that they could be accepted to have led to the accused having intended to commit the crime. Ultimately, in the interest of justice, the approach by the law can be said to be in weighing out the extent to which the mental condition had impaired the accused’s ability to intentionally commit the abuse. While it is admitted that the suffering by the victim is just as unacceptable regardless of whether the abuser suffers from any recognized condition, the purpose of the law here is fundamentally to apportion guilt and not blame. As such, in situations where the mental condition of the abuser is not sufficiently severe that it would have prevented him/her from being responsible for their action, they would certainly be unable to escape harsh punishment.

Misconception 3:  FDWs are not able to do anything about abuse prior to intervention by the police or Non-Governmental Organizations (NGOs)

This is most definitely untrue, and it is most unfortunate that many believe this to be accurate. Very often, FDWs opt to tolerate what they perceive to be mild or tolerable instances of abuse, particularly when it manifests in verbal abuse or low levels of discomfort. Reasons why FDWs choose to do so is not the subject of this discussion, but it is noted that it is clearly their prerogative to do so if such tolerance is not coerced and made with informed choice. However, FDWs should be aware of steps they can take that will help prevent an escalation of abuse, or in the alternative help gather evidence to facilitate investigation by the police should the need arise. In the abovementioned case of Rosman bin Anwar, the diary kept by the FDW recording the instances and circumstances with which she was slapped and kicked by her employer was crucial in corroborating her recounts of the abuse that happened over the extended duration of her employment.

As recognized by the Minister for Home Affairs in the 1998 parliamentary session[9], “full-time domestic maids are usually female and are totally dependent on their employers for food and lodging. Having travelled long distances to work in Singapore, many of them are totally deprived of their support network of family and friends”. Moreover, “Maid abuse usually takes place in the privacy of the home where offences are hard to detect” (PP v Chong Siew Chin[10]). Consequently, FDWs have to be proactive in understanding their rights and avenues they can turn to for help, and also in recording any treatment they feel uncomfortable about. A list of such avenues is provided in Annex 1.

Conclusion

In a final analysis, in light of the tragic upward trend in cases of maid abuse in Singapore, it is certainly beneficial to better understand the position of the law with regard to how allegations of abuse are treated by law enforcers and the courts. While this article has by no means conclusively shed light on the areas of law relating to maid abuse, it hopes to have been a good starting point for broader accurate discourse on the topic.

Written in 2016 by Mark Lim (NUS Law class of 2019)

 

Annex 1: Avenues victims of maid abuse may turn to for help

If you are a Foreign Domestic Worker who has been abused, or you know or suspect of a Foreign Domestic Worker who has been abused, here are some avenues you can turn to for help:

Agency/AvenueContactRemarks
Police999(emergency)

1800 255 0000

If you would like to report a case of maid abuse, you can call the police who will investigate further into the matter and put you in contact with organizations that will be able to help you if necessary.

H.O.M.E.1800 797 7977 (toll free)HOME is a non-government organization that works for the well-being, justice and empowerment of migrant workers and trafficked victims in Singapore. Their staff provides counseling and employment advice to workers, runs shelters and provides legal aid to foreign workers who require it.

Law&You[email protected]

 

 

Law&You is started by a group of law students and HOME, and aims to provide foreign domestic workers with information on the law and their rights. Please feel free to drop them an email if you have any questions, or search “Law & You” on Facebook.

 

[1] While this article aims to accord proper dignity to FDWs by avoiding the use of the term “maid” which is correctly often viewed to be derogatory, it also recognizes that many areas of the law, including section 73 of the Penal Code, still use the term. For the avoidance of confusion, this essay will use the term “maid abuse” to refer to the abuse of FDWs. Any offense is deeply regretted.

[2] Amir Hussain, “Probation for retiree guilty of maid abuse”, The Straits Times, 11 February 2016.

[3] Lee Han Shih, “Silence on maid abuse must end”, Business Times, 27 July 2002.

[4] Catherine Robert, “Maid Alleges Abuse by Fellow Myanmar Employers”, The New Paper, 20 December 2015.

[5] PP v Rosman bin Anwar and another [2015] SGHC 247; [2015] 5 SLR 937

[6] ADF v PP and another [2009] SGCA 57; [2010] 1 SLR 874

[7] Shaffiq Alkhaib, “Maid Abuse Trial: Wife has Anorexia and Eats Mostly Bread Herself”, The New Paper, 17 December 2015

[8] Soh Meiyun v Public Prosecutor [2014] SGHC 90; [2014] 3 SLR 299 at [51]

[9] PP v Chong Siew Chin [2001] SGHC 372; [2001] 3 SLR(R) 851 at [40]

[10] ibid at [43]

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Introduction

With 200 million people travelling to and from Singapore each year, the sheer number of travellers suggests that immigration offences might be a major issue on our little red dot. To tackle the advent of immigration related offences, SPF (Singapore Police Force) and ICA (Immigration & Checkpoints Authority) work hand in hand under the persona of the ICC (Integrated Checkpoints Command), which consists of ICA, SPF, and CNB (Central Narcotics Bureau) officers. This collaboration operates at the first line of defence in Singapore at various entry points (or checkpoints) in our country. This of course includes airports, customs, and ferry terminals.

Offences

The list of immigration offences in Singapore are detailed in s57 of the Immigration Act.

The Singapore criminal lawyer website gives a good summary of this at this link.  As one would expect, immigration offences include acts such as:

  • Unlawfully entering Singapore;

  • Harbouring illegal immigrants; and

  • Overstaying.

In Singapore, the 3 most common offences according to the ICA are:

  • Overstaying (staying beyond the period one is permitted to);

  • Illegal immigration (entering Singapore despite not being permitted to); and

  • Harbouring/employing illegal immigrants.


Statistically, overstaying is by far the most common form of immigration offence in Singapore. However, even that, along with all forms of immigration offences have been on a downward trend for the past 5 years, thanks to the efforts of the ICA and law enforcement clamping down hard on overstayers through inland operations.

On the other hand, smuggling (although smuggling is not technically an immigration offence) and sham marriages are both on an upward trend, albeit the latter in much smaller numbers. For those unaware, a sham marriage is one where in exchange for money, a Singapore Citizen (usually one in financial difficulty) marries a non-Singapore citizen to grant citizenship or an extended visitor pass (for more information about how this works, you can access this link for a good summary). In practice, the matchmaking of the financially needy Singaporean and the desperate non-citizen/resident is done by a syndicate third party who receives a cut of the cash.

Enhanced powers of search in 2018

On 1st April 2018, the Immigration (Amendment) Act 2018 came into effect, and with it, enhanced powers of search for immigration and law enforcement officers. Previously, police officers were empowered to search individuals (and their belongings) only after they made an arrest, even within an authorised area (for example, a Changi Airport checkpoint). Immigration officers were allowed to search individuals (and their belongings) only within authorised areas. In effect, this meant that immigration officers did not have an unfettered power to search if they are in public areas (the public areas of Changi Airport, for example).

However, the April 2018 amendments change this. Both immigration and police officers since the Act was passed (1st April 2018) have the authority to search, in essence, any vehicle, or person passing through an authorised area, and places in close vicinity to an authorised area (such as the public areas of Changi Airport). Immigration officers also now have the power to make arrests, although they previously had to wait for their police counterparts to make the arrest.

These powers are especially relevant to tackle smuggling (or anything related to bringing in unlawful items) but leaves the issue of sham marriages wanting. However, the reduction of sham marriages and the catching of it is really more of a practical problem than a legal one, lest a more intrusive marriage process be implemented. It is submitted that the police should take further action to expand or enhance their operations if there is a pressing need to resolve the problem of increased sham marriages in Singapore.

Why the need for enhanced powers of search?

In short, terrorism. Or at least, that seems to be the key factor, according to the Parliamentary Debates enacting this amendment bill. Terror acts like the 2016 Brussels Airport bombing and the Istanbul attacks in the same year were both mentioned in the aforementioned debates. With the enhanced powers of search, firearms and explosives can be detected more easily and without our security officers fearing consequences for overstepping their jurisdiction. This takes a highly effective step against terrorism. My opinion is that the enhanced powers of search have been long overdue, even without the war on terror factored in. Given that immigration officers are often on the front line of things, and it is sometimes crucial to apprehend a suspect with haste, having limited powers of arrest is simply impractical. For example, in the past, an immigration officer could do little more than request backup from their police counterparts if a suspicious individual were to bolt. Credit where credit is due, at least now immigration and police officers are free of the older, and more illogical restrictions.

Dangers of the increased powers of search

Privacy

Every time law enforcement have more powers of search, the right to privacy the public enjoys is reduced. The fact that police officers no longer need a warrant to search individuals (albeit only at certain locations like airports) means that the discretion to search lies with any and all officers. This affects travelers (aside from SAF camp visitors) the most, subjecting all who pass through our airport and ferry terminals to the scrutiny of all law enforcement officers. Aside from the reduced privacy that  travelers must now endure, the enhancement of police powers also means that travelers are more likely to be charged with offences relating to the obstruction of justice (e.g. refusing to be searched outside of the restricted areas of Changi Airport).

Racial Profiling

It is no secret racial profiling is a huge issue in the US, particularly for darker-skinned or middle-eastern looking individuals. Unfortunately, racial profiling happens right here in our tiny red dot. The victims: Indian people. It takes place mainly at MRT stations, security staff frequently checking our Indian friends for dangerous items (in laptop bags or musical instrument cases) while their Chinese and Malay compatriots are left alone. It is subtle and we are usually too engrossed in our smartphones to notice. At this juncture, Singaporean Indians who are aware of this handle it with an admirable stoicism, while others are blissfully ignorant of it. However, the increased convenience which the enhanced powers of search bestows to immigration officers might magnify this problem. Despite this, Singapore is not plagued with intrusive “stop and frisk” policies like the US, the less intrusive search procedures of our security resulting in the searched feeling less intruded upon and subsequently, less discriminated against.

Tourism

Tourists are unlikely to be bothered by the enhanced powers of search as those who travel frequently will already be familiar with more stringent checks at other countries.

Some other things you could mention: how tourists are likely to view this? (esp given SG’s existing reputation in some Western countries as an authoritarian state)

Final thoughts

Ultimately, while reduced privacy is regrettable, it is a necessary evil to take to allow Singapore’s law enforcement to effectively do their jobs. Furthermore, most sensible and innocent people do not mind the added inconvenience (if anything) in exchange for a safer country. The security of our land is paramount in deciding which to prioritise, even if the general public may be against it.

Interesting side note: you can report any immigration offence at https://www.ica.gov.sg/feedbackio if you are so inclined to do so.

Written in 2019 by Benjamin Ong

Bibliography

Data of overstayers – https://data.gov.sg/dataset/number-of-overstayers-arrested?resource_id=63c1097c-5ca9-4dbf-a3f9-3e7f34bac29e

Data of illegal immigrants – https://data.gov.sg/dataset/number-of-illegal-immigrants-arrested

Summary of immigration offences under s57 of Immigration Act – https://www.singaporecriminallawyer.com/immigration-offences/

ICA annual report 2017, 2016, 2015 – https://www.gov.sg/~/sgpcmedia/media_releases/ica/press_release/P-20180208-1/attachment/ICA%20Annual%20Statistics%202017.pdf – the ICA website was not working for this one

https://www.ica.gov.sg/cms/files/ICAAnnualStatistics2016.pdf

https://www.ica.gov.sg/cms/files/ICA%20AR%202015-FINAL-web.pdf

Second Reading of Immigration (Amendment) Bill 2018 – https://sprs.parl.gov.sg/search/topic?reportid=017_20180108_S0003_T0003

Sham Marriages – https://singaporelegaladvice.com/law-articles/are-sham-marriages-illegal-in-singapore/

Marrying a foreign spouse in Singapore – https://dollarsandsense.sg/marrying-a-foreign-spouse-in-singapore-this-is-what-you-need-to-plan-for/

Immigration Act – especially s51AA, s57, s57C

Immigration (Amendment) Act 2018

Report an immigration offence – https://www.ica.gov.sg/feedbackio

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An eye for an eye, and a tooth for a tooth- this philosophy is what the general public wished had been applied to the infamous case of Annie Ee.

Annie Ee was an intellectually disabled waitress who was tortured relentlessly for months, resulting in her death. Prosecutors sought to charge her abusers with merely 14 and 15 years of jail respectively and the public outcry was instant- there was even an online petition for a harsher sentence that garnered over 39,000 signatures. However, the AGC remained steadfast in its stance that the accused should be treated fairly and that due process had to be followed in the sentencing.

That may have been a bitter pill to swallow for some, but ultimately sentencing is a complex process that involves a multitude of considerations. Judges have to juggle sentencing principles, guidelines laid down by precedent cases as well as mitigating factors- indeed, Judges walk a fine line when sentencing an offender.

The Art of Sentencing

There are 4 principles of sentencing- retribution, deterrence, prevention and rehabilitation.

A brief explanation of each principle

1)    Retribution: Aims to mete out punishments according to culpability and seriousness of crime.

2)    Deterrence: Aims to discourage others from committing the same crime, and to deter the offender from re-offending.

3)    Prevention: Aims to physically prevents an offender from committing more crime by putting them behind bars.

4)    Rehabilitation: Aims to give offenders the chance to reform, especially if they are young, first-time offenders or mentally challenged.


While Judges ultimately hand down a sentence, the Prosecution greatly assists in the process by proposing a sentence they feel is most appropriate. Keeping the 4 aforementioned principles in mind, the Prosecution will evaluate other factors such as minimum punishment requirements, the nature of the offence and sentences imposed in precedent cases, before coming to their decision.

Mitigating factors will then be presented by the Defence. These could include, inter alia, the offender’s remorse, the lack of a criminal record, young age or mental incapacitation.

Sentencing guidelines

Singapore has taken steps to introduce certainty into the process of sentencing through the imposition of sentencing guidelines, which are developed through the examination of precedent cases and the study of other countries’ results. These frameworks have become increasingly popular, with 15 guidelines having been developed by the Courts in the past 5 years.

A prominent example would be the four sentencing bands for drink-driving, as evinced by CJ Menon in 2013- each band corresponds to the level of alcohol found in the offender’s body and whether he was driving dangerously.

However, it is important to note that these guidelines are not set in stone. Courts always have the discretion to adjust the sentence in accordance with the facts of each case.

The Penal Code Review

The justice system’s tenacious pursuit of self-improvement culminated in the 2018 Penal Code Review, where updates for the sentencing framework were proposed. For example, some offences have a Mandatory Minimum Sentence (MMS) where all offenders face an unavoidable sentence- this has been recognized as unduly harsh. Presumptive minimum sentences have thus been introduced to aid in cases where the MMS would be unjust, especially for cases involving first time offenders who commit less severe crimes.

In light of case of Annie Ee, the Review also introduced new offences to further protect vulnerable individuals. One new offence would be that of sustained abuse leading to the death of a vulnerable victim, where the punishment would be of the same magnitude as that of culpable homicide of a vulnerable victim, s 304 (b).

Singapore’s shift towards rehabilitaiton

The 2000s saw a marked change in the approach to sentencing. The Community Courts were established to help a large range of offenders, from the young to the mentally disabled. These Courts could get families or victims of the offenders involved so as to identify the reasons for their behavior.

In 2010, the Criminal Procedure Code (CPC) was amended and community sentences were introduced- there are 5 types of these sentences which target different groups of people. These include: Mandatory Treatment Orders, Community Work Orders, Community Service Orders, Short Detention Orders, and Day Reporting Orders.

A brief explanation of each community sentence

1)    Mandatory Treatment Order: To treat psychiatric conditions that contribute to criminal behavior

2)    Community Work Order: To promote a sense of responsibility in the offender for the harm he has caused.

3)    Community Service Order: To promote reformation by affording the offender the opportunity to make amends by providing general services to the community (cleaning, repairing etc.)

4)    Short Detention Order: Imprisonment not exceeding 14 days. Suitable for immediate reintegration into society.

5)    Day Reporting Order: Close supervision of offender, with electronic monitoring where necessary.


As Minister for Law Mr K Shanmugam explained in the Parliamentary Debates for the CPC amendments, these sentences prevent an offender from being displaced from his family, employment and society while still maintaining a punitive effect.

In 2014, the Prisons Act was amended to establish the Conditional Remission System (CRS) and the Mandatory Aftercare Scheme (MAS).

Under the CRS, prisoners who exhibit good behavior can expect a remission of up to one third of their original sentence- however, if they reoffend during the remission period, they will not only be liable for the new offence, but their sentence will also be enhanced. The CRS is complemented by the MAS, which targets ex-offenders who have a higher risk of re-offending- it provides community support, counselling, case management and tight supervision. This process can last up to 2 years, till offenders are rehabilitated and successfully re-integrated into society.

Singapore has certainly made strides when it comes to rehabilitative sentencing, but the question remains- what exactly is the rationale behind this?

Why we need rehabilitation

The importance of rehabilitation, especially for young offenders, was highlighted in the case of PP v ASR. This case involved the rape of a 16-year-old girl by a 14-year-old perpetrator- both the victim and the accused were mentally challenged individuals who fell within the “extremely low” range of intelligence of the “Full Scale Intelligence Quotient” test (IQ test).

In its judgment, the Court referred to Menon CJ’s speech at the Sentencing Conference 2017, where reasons were given as to why rehabilitation is the most important sentencing consideration.

These included the fact that placing young offenders in a prison environment would only aggravate the problem by exposing them to the “adverse moral influence” of older offenders, as well as that society stands to benefit greatly from the rehabilitation of young offenders due to their potential to contribute back to society once re-integrated.

The Court also emphasized that if the accused was rehabilitated, the public’s protection would be enhanced.

In my opinion, the Court made the right decision. Indeed, the shift towards rehabilitation will benefit offenders, especially those who are young or mentally challenged, as it will give them the opportunity to understand the gravity of their actions and to repent. A mere prison sentence could potentially leave these offenders unaware of their moral failings, setting them on an inexorable path towards reoffending.

However, it is important to note that rehabilitation cannot be prioritised over the safety of the public. For example, when sentencing habitual offenders or individuals who can be classified as ‘dangerous’, the principle of deterrence should take precedence over that of rehabilitation. The public’s safety should always be the primary consideration of the Court- if a deterrent prison sentence is deemed to be the better way to protect the public, then it should be favoured.

Conclusion

The sentences meted out in high profile cases are sometimes met with furore, as can be seen from the aforementioned case of Annie Ee. The public’s blinding empathy for victims culminates in anger directed at not only the offender but also the Courts for meting out sentences that are ostensibly too lenient.

However, the public has to understand that the justice system has a multitude of measures in place to ensure that even offenders who have committed heinous crimes are given fair sentences. These include a careful consideration of sentencing principles, guidelines, precedent cases as well as mitigating factors. Even if a sentence appears to be ‘unfair’, it must be recognised as a well-justified outcome that the Court has reached after a laborious and intricate sentencing process.

Ultimately, sentencing has always been labelled an art- and rightfully so.

This article was written by Alvina Logan, NUS Law Batch of 2022

Bibliography

  1. Vanessa Paige Chelvan. “Couple ‘tortured’ intellectually disabled waitress, who died after 8 months of abuse”, Channel News Asia <https://www.channelnewsasia.com/news/singapore/couple-tortured-intellectually-disabled-waitress-who-died-after-9445228>
  2. Petition to increase sentence for abusers of Annie Ee <https://www.change.org/p/appeal-for-harsher-sentence-singaporean-couple-abuses-intellectually-disabled-woman-to-death>
  3. Couple who tortured Annie Ee: Prosecutor could not charge them with murder, says AGC”, Channel News Asia https://www.channelnewsasia.com/news/singapore/annie-ee-couple-tortured-prosecutor-murder-agc-9506392
  4. Selina Lum, “Increase in sentencing guidelines set recently”, The Straits Times  < https://www.straitstimes.com/singapore/increase-in-sentencing-guidelines-set-recently>
  5. Understanding Legal Processes: Sentencing in Singapore, Attorney Generals Chambers https://www.agc.gov.sg/legal-processes/sentencing-in-singapore
  6. Glenn Ang Yu Jie, “Thoughts on the Penal Code Review”, On the Ground NUS, https://www.nuslawclub.com/ontheground/2018/10/18/pcrc18/
  7. Sentencing Conference 2017, Keynote Address by Chief Justice Sundaresh Menon, <https://www.supremecourt.gov.sg/Data/Editor/Documents/SAL%20Sentencing%20Conference%202017%20-%20Keynote%20Address%20(Checked%20against%20delivery%20-%20261017).pdf>
  8. Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87
  9. Public Prosecutor v ASR, [2018] SGHC 94
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Introduction

The localisation of criminal justice discourse is inescapable. Understandably, crimes which occur in close proximity to us (one dare say in Yishun, perhaps) and which affect our kin conjures an unparalleled immediacy and urgency compared to crimes happening in, say, the Rakhine state of Myanmar. Naturally, the nuances of “criminal justice” and sentiments of the same are thus nurtured, developed and will continue to evolve almost in a silo—separate from the international order and specific to the legal, social and cultural peculiarities of our nation-state.

This article attempts to discuss Singapore’s oft-overlooked position vis-à-vis the international criminal justice system. International criminal law and in particular, the International Criminal Court (“the ICC”), are examples of frameworks which sit stratospherically above all of the world’s conceivable silos of “criminal justice”. In fact, the earliest forms of the international criminal law framework precede even the formation of some of today’s nations.

After the Armenian Genocide in the 1910s, attempts by the Allied administration in Constantinople to try members of the government of the Ottoman Empire can be construed as setting the stage for replacing a culture of impunity with that of accountability. In the same vein, the Tokyo and Nuremberg trials after the end of WWII can be seen as representing a pivotal transnational effort to punish crimes against humanity and other war crimes. These historical developments thus laid the foundation for future intergovernmental deliberations of a permanent international criminal court.

While the end of WWII marshalled worldwide attention to the atrocities committed by the Axis powers, the overall hostile diplomatic relations during the Cold War halted any effort to establish a permanent international criminal court¹. In the early 1990s, as the machetes started swinging in Rwanda to the tune of close to a million deaths and news of the Balkan brutalities echoed around the globe, the motivations for the Rome Statute became desperately apparent.

What is the ICC?

The ICC was officially created when 160 states convened in Rome, Italy in the summer of 1998 to negotiate the contents of the Rome Statute (“the Statute”), leading to its eventual adoption after five continuous weeks of meetings. The Statute is the founding treaty of the ICC and it entered into force on 1 July 2002.

The Statute comprises 128 articles which are split into 13 parts. Of particular relevance is Part II which details the jurisdiction of the ICC, the admissibility of cases, and the applicable law to be applied by the ICC in its proceedings². The other Parts of the Statute states, inter alia, the Court’s structure, procedural rules, rules of evidence, applicable penalties, role of states in enforcement, and other financing regulations.

The jurisdiction of the ICC, as stated in Article 5 of the Statute, covers the following crimes:

  • The crime against genocide;
  • Crimes against humanity;
  • War crimes; and
  • The crime of aggression.


A significant feature of the Statute which empowers the Court (subject to the Court’s procedural requirements) to prosecute individuals or heads of states for the abovementioned crimes ensures that ideally, not even dictators can escape the prosecutorial arm of the ICC². This feature, as enshrined in Article 25 of the Statute, would later on be referenced in criticisms of the ICC as a neo-colonialist endeavour, seen in its disproportionately frequent prosecution of African leaders. It also possibly hints to why the United States, Russia and China have either withdrawn membership or refused to ratify or accede to the Statute.

With respect to other international organisations, the ICC is envisaged to be an independent permanent judicial organ, ideally distanced from potential politicisation of issues involving the United Nations Security Council (UNSC), and at the same time sidestepping prevailing national constitutional bans on the creation of special courts³. We will soon understand that such ideals have been incredibly difficult to satisfy.

It is argued that only the widest ratification from all sovereign nations can truly ensure the Court’s independence. As of October 2017 (when Burundi withdrew as a member state), 123 countries have both signed and ratified the Rome Statute⁴. Singapore is not one of those countries.

Singapore’s role in the creation of the ICC

Singapore’s non-ratification of the ICC appears incongruous with its extensive involvement in both the formation of the Statute as well as in international legal arena insofar as international criminal law is concerned. Around the same time in the early 2000s when states around the world were ratifying the Statute in droves, former Judicial Commissioner SC Amarjeet Singh was nominated by the UN General Assembly as an ad litem judge of the International Criminal Tribunal for the former Yugoslavia (ICTY)⁵. As a Singaporean legal luminary sat in The Hague presiding over monumental cases which were transformative in the realm of international humanitarian law, the Singaporean government was silent on its decision to ratify the very same Statute it had a role in shaping.

Indeed, Singapore’s voice on the negotiation table was all but soft. The diplomatic might of Singapore’s representatives in the Rome negotiations came to light when a sensitive issue surfaced regarding the role of the UNSC, a political organ, vis-à-vis the judicial function of the Court.

Conventionally, Articles 24(1) and 103 of the UN Charter recognise the indispensable role of the UNSC to maintain international peace and security. The primacy of this UNSC responsibility in turn informed Article 3(3) of the International Law Committee (ILC) Draft Statute (the precursor to the finalised Statute) which allowed the Council to prohibit any prosecution if it arose from a situation which concerns the Council as being a “threat to or breach of the peace or an act of aggression”, unless the Council approved otherwise⁶. Essentially, the ILC Draft Statute proposed that any decision by the Court to trigger prosecution effectively depends on the UNSC’s approval.

In balancing the two competing considerations of judicial independence and executive authority, a compromise formulation was proposed by the respected representative of Singapore’s delegation, current Deputy Attorney-General Mr Lionel Yee. The proposal occupied the middle ground where the Court’s proceedings in investigation or prosecution may proceed, unless the UNSC formally decides to halt the process, a move requiring the minimum nine affirmative votes in the Council⁶. Further, the prevention or suspension of such proceedings will be limited to a renewable 12-month period. This arrangement eventually became known as the “Singapore compromise” and is enshrined in Article 16 of the Statute².

In his statement to the President of the Diplomatic Conference in Rome, Mr Yee called for the formation of an “institution which enjoys as universal a participation of states as possible”⁷. While Singapore’s unshakeable confidence in the arduous task of authenticating a holistic form of international criminal justice was seemingly evident at the infancy of the Statute, its eventual refusal to engage with the ICC belies this approach. So why is Singapore not a state party to the Statute? The reason might be a confluence of factors, of which some might not be in Singapore’s direct control.

Singapore’s position on the ICC and the Rome Statute

Even though Singapore’s major contribution to the Statue remains preserved in its Article 16, the culmination of the meetings in Rome saw Singapore abstain from the vote to adopt the Statute. Singapore joined 20 other countries in abstinence, while 120 voted in favour and seven rejected the Statute ⁸. The representative from Singapore explained the delegation’s vote after the fact:

It always supported a strong Court; however, in the last hours, provisions were drafted which involved just a small group of countries. There was a strange fix for the question of jurisdiction which had appeared for the first time at the last minutes of the Conference. To our dismay, chemical and biological weapons have been inexplicably dropped. The non-inclusion of the death penalty was also a negative aspect.⁸

The above explanation elucidates the hegemonic presence of a few powerful countries on the negotiation table. Singapore’s wish to have the Court recognise the death penalty as a punishment, as echoed by a vocal minority of other mostly Muslim states, was jettisoned from the final Statute.

To contextualise Singapore’s reticence beyond the whirlwind of the Rome Conference, one would benefit from looking at the response of the wider Asian region. Of the 123 countries which have ratified the Statute, only 19 countries are in the Asia-Pacific. In the Association of Southeast Asian Nations (ASEAN), only Cambodia and the Philippines are state members⁹. Even then, President Duterte has announced the Philippines’ withdrawal from the ICC, while Cambodia’s engagement might be a cautionary reaction to a history of genocide with wounds all too recent¹⁰. Unlike continental unions such as the EU or the African Union, ASEAN exists primarily to serve common national interests, with little to no attempt at unifying principles or values of the myriad identities of criminal justice¹¹.

It is also worth exploring Singapore’s brush with international tribunals in the past before the eventful Rome Conference. Besides the International Military Tribunal for the Far East (IMTFE) after WWII, there were other locally-based trials held in military courts set up in places like Singapore and Hong Kong. Notably, the Singapore Trials saw the participation of Allied lawyers and judges from Australia, the U.S., and Netherlands¹². However, barriers in communication, participation, and argumentation manifested due to cultural differences between trial participants. Cultural relativism therefore impedes the efficacy of such tribunals. Similarly, one can expect such cultural clashes to be amplified as member states try to navigate the sensitive and complex crimes under the ICC’s jurisdiction.

Further, Professor Simon Chesterman noted that in the Tokyo Trials, the U.S.’ involvement in the trials was seen as instrumentalising international criminal law for “selective engagement” with Japan’s domestic political process with the aim of securing a stable post-war Japan while subduing liberation struggles in the region¹¹.

At bottom, Asia’s brief experience with international criminal justice in the wake of WWII might have fostered in Singapore and other countries in the region a measured wariness to the political reach of such institutions. The operation of these Western-led tribunals in the past, steeped in the political context of decolonisation and race, has ostensibly shaped our attitudes to and expectations of bodies like the ICC.

Prospects of Singapore’s accession to the Rome Statute

How likely, then, is a shift in regional attitude towards the efficacy of international criminal justice? Professor Mark Findlay, by way of an incisive “taxonomy of reluctance”, deciphered the general patterns of non-engagement of Asian states to reason why a “one size fits all” variety of global criminal justice might not be a favourable arrangement¹³.

Among a multitude of reasons, Professor Findlay identifies constitutional legality as a reason for the continued reluctance of some Asian states to engage with the ICC. While domestic criminal justice systems with fragile and compromised capacities tend to gravitate towards the ICC, countries like Singapore with “relatively well-resourced, centralised and resilient criminal juridical institutions” would inversely be comfortable managing its own criminal affairs within the ICC’s jurisdiction¹³. Interestingly, Chapter VIB of the Singapore Penal Code prohibiting the crime of genocide was introduced in 2007. In fact, Section 130D which lists the acts amounting to genocide and Article 6 of the Statute are both in pari materia¹⁴. The Parliament’s move to affirm the criminality of genocide in the Penal Code suggests an attempt at recognising the substantive content of the Statute, short of the institutional, financial, and ideological commitment expected from an ICC membership.

Further, based on Singapore’s initial explanation of its abstinence from the vote to adopt the Statute over 20 years ago in Rome, the lack of any recommended amendment of the Statute which would reflect the Court’s commitment to capital punishment means that Singapore is unlikely to budge towards accession. More broadly, this subscribes to an incompatibility between the proliferation of rights-focused “human rights charters and leadership codes” and Singapore’s stance on the death penalty, which is seen as a major transgression of human rights by UN standards¹³. Once again, constitutional legality trumps any notion of global jurisprudence on criminal law.

A case for accession?

With a lack of grassroots support in civil society calling for the country’s accession to the ICC, there is, in response, no strong indication on whether Singapore will eventually accede to the Statute. In October 2012, Singapore became the focus of the Coalition for the International Criminal Court’s Universal Ratification Campaign (URC). The global coalition, addressing Prime Minister Lee Hsien Loong, called on Singapore to affirm its support for justice and the rule of law by acceding to the Statute¹⁵.

In the coalition’s appeal, the case for accession was substantially argued for. In essence, ratification advocates have continuously stressed that the towering silos of “criminal justice” around the world are more apparent than real. Highlighting the system of complementarity (which concedes to the nation state the primary duty to investigate and prosecute crimes in the ICC’s jurisdiction), the norm setting function of the Court, and the need for state cooperation for evidence collection and witness testimony, Court representatives and advocates urged non-state parties like Singapore to strive for accession¹⁵.

Conclusion

While the present discussion relates to international criminal justice, one should not be trapped by the deceptively easy process of synonymising Singapore’s reticence to accede to the Statute with a disgraceful reluctance to assert punishment against war crimes or genocide.

Instead, disposing a parochial understanding of Singapore’s diplomatic strategy in favour of an appreciation of the government’s behaviour towards other treaties in general assists us to conclude that Singapore’s non-accession to the Statute is representative of its overall attitude towards international institutions and treaties.  For instance, Singapore has yet to accept compulsory jurisdiction of the International Court of Justice (ICJ) and is not a state party to both the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR)¹¹. Singapore’s calculated stance is consistent across the board and commands an inter-agency consensus on its realistic role with respect to these international creatures—be they legal, financial, or political.

It remains to be seen what Singapore’s future decision is with respect to the Statute. As with any other transnational endeavour, accession to an international treaty bears significant weight but also comes with major administrative and allocative challenges. Regardless, Singapore is steadfast: the silo will stand, for now.

This article was written by Ahmad Musthofa Bin Murdifi, NUS Law Batch of 2022

Bibliography

  1. Yee L. Not Just a War Crimes Court: The Penal Regime Established by the Rome Statute of the International Criminal Court. Singap Acad Law J. 1998;10(2):321–69.
  2. Rome Statute of the International Criminal Court. A/CONF.183/9 Jul 17, 1998. Available from: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
  3. Penna LR. The International Criminal Court.Singap J Int Comp Law. :227.
  4. The States Parties to the Rome Statute. Available from: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
  5. Chik WB. Singapore and International Law: Recent International Legal Developments in Singapore (2001) Regular Feature. Singap J Int Comp Law. 2001;5:807–13.
  6. Lee RSK. The International Criminal Court: the making of the Rome Statute : issues, negotiations and results. Martinus Nijhoff Publishers; 1999. 698 p.
  7. Statement by Mr Lionel Yee Woon Chin. The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court; 1998 Jun 16. Available from: https://www.legal-tools.org/doc/3208ad/pdf/
  8. UN Diplomatic Conference Concludes in Rome With Decision To Establish Permanent International Criminal Court. 1998. Available from: https://www.un.org/press/en/1998/19980720.l2889.html
  9. Think Centre holds court on ICC. 2004. Available from: http://www.thinkcentre.org/article.php?id=2440
  10. A. Calayag K. Duterte’s claim on Rome Statute ratification ‘grossly incorrect’. Sun Star. 2018 Mar 21; Available from: https://www.sunstar.com.ph/article/424763/
  11. Chesterman S. International criminal law with Asian characteristics? Columbia J Asian Law. 2014;27(2):129.
  12. Cheah Wui Ling. Justice for strangers: culture and communication in the Singapore war crimes trials 1946-1948. Oxf Univ Res Arch. 2015; Available from: https://ora.ox.ac.uk/objects/uuid:4cf3b1d8-30a7-441a-b7e6-67b9c8b2c57b
  13. Findlay M. Sign Up or Sign Off: Asia’s Reluctant Engagement with the International Criminal Court. Cambodian Law Policy J. 2014 Jan 1;75–95.
  14. Singapore Penal Code (Cap 224, 2008 Rev Ed) s 130D.
  15. Coalition for the International Criminal Court. Global Coalition Calls on Singapore to Accede to Rome Statute. 2012. Available from: http://iccnow.org/documents/Singapore_URC_Press_Release_FINAL.pdf

 

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