Singapore Academy of Law Journal

Issue Number

Latest documents

• EQUAL JUSTICE UNDER THE CONSTITUTION AND SECTION 377A OF THE PENAL CODE The Roads Not Taken This article takes a fresh look at s 377A of Penal Code (Cap 224, 2008 Rev Ed), and critically considers its scope and object against the backdrop of the Court of Appeal's and High Court's decisions in Lim Meng Suang v Attorney-General [2015] 1 SLR 26 and Tan Eng Hong v Attorney-General [2013] 4 SLR 1059. Through a close examination of the legislative history of s 377A, it argues that s 377A is not concerned with male-male penetrative sex covered by the repealed s 377 (sex against the order of nature), but with other acts of gross indecency. The article also (a) argues that the proper application of Art 12(1) – especially in the case of penal statutes – requires the court to first find a justifiable cause for discrimination, and then to apply the “reasonable classification” test against the impugned law; and (b) examines other issues relating to constitutional adjudication, such as the presumption of constitu
• Book Review AN EMPIRE OF LAWS: LEGAL PLURALISM IN BRITISH COLONIAL POLICY1 by Christian R Burset
• FROM ADVERSARIAL TO COLLABORATIVE TRUTH SEEKING The Past, Present and Future of Criminal Disclosure in Singapore Singapore's criminal disclosure regime has undergone significant changes over the past 15 years. Often, the focus has been on the greater obligations placed on the Prosecution to disclose material to the Defence. These changes have been viewed as “levelling the playing field” and shifting Singapore's criminal justice system from a model primarily based on crime control to one embracing aspects of due process. These analytical approaches view the developments in criminal disclosure as a “zero-sum” tug of war between rules which tend to favour either the Prosecution or the Defence. This article adopts a different lens – by surveying the evolution of criminal disclosure in Singapore, including past developments and the present position as reflected in the Criminal Procedure (Miscellaneous Amendments) Act 2024, it is argued that the shift which has taken place is more fundamental in nature, and is on
• THE EVOLUTION OF SINGAPORE’S MODERN CONSTITUTION: DEVELOPMENTS FROM 1945 TO THE PRESENT DAY1
• A TALE OF TWO CAPACITIES Assessing the Mental Capacity Act's Relevance in Proving Testamentary Capacity in Singapore “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness”, Charles Dickens' timeless words is an appropriate description of the ebbs and flows of one's testamentary capacity. In determining whether a testator has testamentary capacity, practitioners always relied on the unintuitive common law rules as stated in the locus classicus of Banks v Goodfellow (1870) LR 5 QB 549. However, the murky waters are even more unsettled with the introduction of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). This article considers the uneasy interaction between the old common law rules and the MCA, and proposes some changes for the law on testamentary capacity.
• Book Review THE MAKING OF A JUSTICE: REFLECTIONS ON MY FIRST 94 YEARS* by John Paul Stevens
• Book Review REHABILITATING LOCHNER* by David Bernstein
• REOPENING CONCLUDED CASES IN CRIMINAL MATTERS Post-appeal applications in criminal matters have burgeoned in the recent years. Several of these applications have raised serious concerns regarding the abuse of the court's processes. This article examines the current legal landscape governing post-appeal review applications in criminal matters, recent abuses of the court's processes arising from such applications and the changes introduced by the Post-appeal Applications in Capital Cases Act 2022.
• Case Note THE NEW SYSTEM OF CIVIL APPEALS What “Constitutional or Administrative Law” Is; Whether to Appeal to the Appellate Division or the Court of Appeal; and Proposals for Broader Reform Tan Beng Hui Carolyn v Law Society of Singapore [2023] SGCA 7 An application was made under s 95 of the Legal Profession Act to set aside a penalty imposed by the Council of the Law Society. The Court of Appeal held that an appeal lay to the Appellate Division of the High Court, and not the Court of Appeal, because this was not a “case relating to constitutional or administrative law”. The reasoning is problematic: it relied on an overly narrow conception of “public powers”, conflated judicial review with administrative law more broadly, erroneously considered the merits of the application as relevant to the “which court” question, and overlooked the similarities between the present application and a typical application for judicial review. This note proposes a more detailed definition of “constitutional or administra
• CONCILIATION OF INVESTOR–STATE DISPUTES, ARB-CON-ARB, AND THE SINGAPORE CONVENTION Conciliation is a dispute settlement mechanism that is particularly suitable for investor–State disputes. It provides flexibility for political sensitivities, relationship preservation, and technical complexity. Most importantly, it offers neutral evaluation of the quantum of compensation. Yet conciliation has played a minimal role in assisting the settlement of investor–State disputes in the last 50 years – why? Two important obstacles to the settlement of investment disputes are the investor's preference for binding results and restrictions on government officials for fear of corruption. This article examines how conciliation and arbitration should be structured to form complementary negotiation windows, examines the prospects of the 2019 Singapore Convention on International Settlement Agreements Resulting from Mediation for conciliation, and recommends that institutions handling investment disputes offer Arb-Con-Arb di

Featured documents

• EQUAL JUSTICE UNDER THE CONSTITUTION AND SECTION 377A OF THE PENAL CODE The Roads Not Taken This article takes a fresh look at s 377A of Penal Code (Cap 224, 2008 Rev Ed), and critically considers its scope and object against the backdrop of the Court of Appeal's and High Court's decisions in Lim Meng Suang v Attorney-General [2015] 1 SLR 26 and Tan Eng Hong v Attorney-General [2013] 4 SLR 1059. Through a close examination of the legislative history of s 377A, it argues that s 377A is not concerned with male-male penetrative sex covered by the repealed s 377 (sex against the order of nature), but with other acts of gross indecency. The article also (a) argues that the proper application of Art 12(1) – especially in the case of penal statutes – requires the court to first find a justifiable cause for discrimination, and then to apply the “reasonable classification” test against the impugned law; and (b) examines other issues relating to constitutional adjudication, such as the presumption of constitu
• A TALE OF TWO CAPACITIES Assessing the Mental Capacity Act's Relevance in Proving Testamentary Capacity in Singapore “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness”, Charles Dickens' timeless words is an appropriate description of the ebbs and flows of one's testamentary capacity. In determining whether a testator has testamentary capacity, practitioners always relied on the unintuitive common law rules as stated in the locus classicus of Banks v Goodfellow (1870) LR 5 QB 549. However, the murky waters are even more unsettled with the introduction of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). This article considers the uneasy interaction between the old common law rules and the MCA, and proposes some changes for the law on testamentary capacity.
• REOPENING CONCLUDED CASES IN CRIMINAL MATTERS Post-appeal applications in criminal matters have burgeoned in the recent years. Several of these applications have raised serious concerns regarding the abuse of the court's processes. This article examines the current legal landscape governing post-appeal review applications in criminal matters, recent abuses of the court's processes arising from such applications and the changes introduced by the Post-appeal Applications in Capital Cases Act 2022.
• SELF-DEALING AND NO-PROFIT RULES: COMPANIES ACT 2016
• ENDEAVOURS CLAUSES IN SINGAPORE CONTRACT LAW
• THE DOCTRINE OF UNILATERAL SEVERANCE AND ITS POTENTIAL DEVELOPMENT IN SINGAPORE Co-ownership of land is commonplace in Singapore, and the manner of holding among co-owners has important practical implications. Joint tenants are subject to the rule of survivorship, but what if a joint tenant does not wish to be locked into the survivorship wheel of fortune? A joint tenant may unilaterally sever the joint tenancy by an act operating upon his or her share of the land, but questions remain as to when that occurs and the consequent duration of severance. This article attempts to address these questions with the current alienation-based approach and suggest the possibility of an intention-based approach.
• A TRAP FOR THE UNWARY: ENFORCING WRITS OF SEIZURE AND SALE AGAINST JOINT TENANCIES Joint tenancies are a common method of holding properties in Singapore, and yet, the issue in relation to enforcing writs of seizure and sale against a judgment debtor who owns a property on a joint tenancy with another is fraught with great legal and procedural uncertainty. This paper seeks to cut through the thicket of confusion by unpacking the various legal and procedural difficulties surrounding enforcing a judgment via a writ of seizure and sale against a judgment debtor who owns property as a joint tenant with another. Specifically, this article seeks to offer solutions to the practical difficulties of registering a writ of seizure and sale, effecting a sale in the face of a prior mortgagee's objection and the issue of priorities in relation to the surplus of the sale proceeds.
• A GOLDEN THREAD ON THE RED DOT Modified Universalism and the Law on Cross-border Insolvency in Singapore “Everything has its limit — iron ore cannot be educated into gold”. Mark Twain's words are an apt description of the court's powers in facilitating cross-border insolvency. However, that “golden thread” of modified universalism has lost its lustre in the UK ever since the Supreme Court's controversial decision in Rubin v Eurofinance SA [2013] 1 AC 236. In Singapore, the thread continues to flourish, and the potential for its development may well be limitless. This article surveys the existing case law in Singapore and considers the common law's role in the brave new world of cross-border insolvencies.
• CONTRACT LAW IN COMMONWEALTH COUNTRIES: UNIFORMITY OR DIVERGENCE?
• PRIVATE AND COMMON PROPERTY RIGHTS IN PERSONAL DATA This article makes a case for examining personal data from a property law perspective. In particular, it sets out the arguments both in favour of and against granting private and common property law rights in personal data. While property law is not a panacea for all the problems that have arisen in the big data era, it provides a useful framework and a set of established principles for approaching those problems.