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SINGAPORE LEGAL SYSTEM 2009 PART I. INTERNATIONAL LAW AND SINGAPORE LAW Topic 5.

International Law and Singapore Courts


.A Discussion Questions....................................................2 .B Interpretation of legislation implementing Treaties ........3 .1 1969 Vienna Convention on the Law of Treaties......................3 .2 Interpretation Act Provisions on Interpretation of Statutes.......4 .3 Interpreting Implementing Legislation: Yusen Air & Sea Service (S) v Changi International Airport Services ............................6 .C International Law and Singapore Courts.......................11 .1 Introductory Note....................................................................11 .2 International Human Rights Law and Singapore Law: Chan Sek Keong, Rethinking the Criminal Justice System of Singapore for the 21st Century ...........................................................13 .3 Customary International Law, International Human Rights Law, and Singapore Law: Nguyen Tuong Van v Public Prosecutor 15 .4 Courts and the Executive Prerogative in Foreign Affairs: Lee Hsien Loong v Review Publishing Co Ltd and Anor ...............21 .5 Singapore Courts and State Immunity: Republic of the Philippines v Maler Foundation and Others...........................27

All Rights Reserved Robert Beckman 2009 These materials are for the sole use of students in the NUS Faculty of Law. They are not to copied or circulated without the express written permission of the author.

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.A DISCUSSION QUESTIONS
In this topic we will examine the how international law issues might arise in cases before the courts in Singapore. First, we will examine the rules for interpreting treaties under the 1969 Vienna Convention on the Law of Treaties and compare them to the rules for interpreting statutes in Singapore as set out in Section 9A of the Interpretation Act. Are the rules on interpreting treaties in fact almost identical to the rules on interpreting statutes? When and for what purpose can a Court look to materials outside the treaty or statute (extrinsic aids)? Second, we will discuss the reasoning of the court in the Yusan Air case to determine if the Courts approach took into account the fact that the legislation provision in question was legislation implementing an international treaty. Third, we will discuss the comments of the Chief Justice on the challenge posed by international human rights law to the Singapore Courts, and then discuss the Nguyen Tuong Van case to consider the courts reasoning on the relationship between customary international law and Singapore law, as well as the whether international human rights law could be considered when interpreting Article 9(1) of the Singapore Constitution. Fourth, we will discuss the issues raised in the Lee Hsien Loong case with regard to executive certificates and the extent to which the courts should defer to the prerogative of the Executive in the conduct of foreign affairs. Finally, we will examine the reasoning in the recent case concerning the doctrine of State immunity in Singapore and how it was raised in the complex legal dispute concerning assets of the late President Marcos of the Philippines which are being held in banks in Singapore. .

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.B INTERPRETATION OF LEGISLATION IMPLEMENTING TREATIES


The following two articles from the 1969 Vienna Convention on the Law of Treaties lay down the rules to be applied when interpreting provisions in international treaties. Note that the emphasis is in Article 31(1) is on the ordinary meaning of the words in their context and it light of their object and purpose. Article 31(2) states what can be taken into account together with the context, including subsequent agreements and subsequent practice. Article 32 states what supplementary means can be resorted to in order to confirm or determine the meaning of the provision of a treaty when the application of Article 31 is ambiguous or unclear or when it leads to an unreasonable or absurd result. resorted to includes the The supplementary means that can be preparatory work of the treaty and the

circumstances of its conclusion. This means that if a convention has been drafted by the International Law Commission its official commentary to the draft articles can be resorted to as supplementary means of interpretation. Also, there are official reports of the proceedings of the international conference at which the treaty was adopted, they may also be referred to as supplementary means of interpretation.

.1 1969 Vienna Convention on the Law of Treaties


Article 31 .General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

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(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32. Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

.2 Interpretation Act Provisions on Interpretation of Statutes


The issue that arises is what practice will be followed by national courts when they interpret legislation implementing an international treaty, or when they interpret a treaty provision itself. It is often the case that the convention, or some articles of the convention, are included as a schedule to the Act which implements it. Under section 5 of the Interpretation Act (Cap 1.), every Schedule to an Act shall, together with any note thereto, be construed and have effect as part of the Act. Therefore, in such cases the treaty provisions form part of the Act and should be interpreted in the same manner as the provisions in an Act. The general rules on the interpretation of legislation in Singapore are set out in section 9A of the Interpretation Act (Cap 1). It reads as follows: 9A. Purposive interpretation of written law and use of extrinsic materials (1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object. [11/93] (2) Subject to subsection (4), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or (b) to ascertain the meaning of the provision when (i) the provision is ambiguous or obscure; or

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(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable. [11/93] (3) Without limiting the generality of subsection (2), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law shall include (a) all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer; (b) any explanatory statement relating to the Bill containing the provision; (c) the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament; (d) any relevant material in any official record of debates in Parliament; (e) any treaty or other international agreement that is referred to in the written law; and (f) any document that is declared by the written law to be a relevant document for the purposes of this section. [11/93] (4) In determining whether consideration should be given to any material in accordance with subsection (2), or in determining the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage. [11/93] One can argue that the approach in section 9A is very similar to the approach in Article 31 of the Vienna Convention on the Law of Treaties, even though it is worded differently. Section 9A(2) states that consideration may be given to material not forming part of the written law which may assist in the ascertainment of the meaning of the provision to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law . Similarly, consideration may be given to ascertain the meaning of the provision when (1) the provision is ambiguous or obscure; or (2) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable. This implies that the general rule of interpretation is to first ascertain the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying Singapore Legal System 2009 Singapore Law Part I. International Law and

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the written law. This is very similar to the general rule in Article 31(1) which states a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Subsection 2 provides that consideration may be given to any material not forming part of the written law which is capable of assisting in the ascertainment of the meaning of the provision. Subsection 3 states the material not forming part of the written law which may be considered in the interpretation of a provision of a written law shall include six specific matters. One of them is any treaty or other international agreement that is referred to in the written law. Subsection 4 then states consideration should be given to certain policy considerations in determining whether consideration should be given to any material in accordance with subsection (2). It also provides that these same policy factors should be considered in determining the weight to be given to any such material. One can argue that under section 9A, the material that should be considered under subsection 2 when interpreting a treaty provision should include (1) the preparatory work of the treaty, especially official commentaries or reports of the conference proceedings; and (2) cases from either international courts or other national courts interpreting the same treaty provision. One could argue as a matter of public policy that since States parties agreed to the same provisions in the treaty, they should, as a general rule, be interpreted in the same manner in each State that is a party in order to ensure consistency and uniformity. You will see language to this effect in Yusen Air & Sea Service (S) Pte Ltd v Changi International Airport Services Pte Ltd. There are also rules of statutory interpretation in Commonwealth jurisdictions which provide that if a statutory provision is capable of more than one meaning, the court should choose the meaning that is consistent with international law.

.3 Interpreting Implementing Legislation: Yusen Air & Sea Service (S) v Changi International Airport Services
Court of Appeal [1999] 4 SLR 135; [1999] SGCA 62 Singapore Legal System 2009 Singapore Law Part I. International Law and

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Lai Kew Chai J . . . Whether CIAS entitled to plead the limitation of liability under art 22(2) of the Warsaw Convention
46 In the court below, it was held that CIAS could also limit its liability to Yusen in accordance with art 22(2) of the Warsaw Convention. This finding is challenged on appeal. Before going into the merits of Yusens arguments, we now set out art 22(2) of the Warsaw Convention: In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater that the actual value, to the consignor at delivery. 47 No special value has been declared for the cargo. If Yusen had claimed against KLM, the maximum liability of KLM for the loss of the 9 kg cargo would have been S$446.22. However, the claim in this case is against CIAS, KLMs agent. The question is whether a carriers agent can rely on the same limitation of liability under art 22 even though the article only specifically refers to the liability of a carrier. 48 The main argument of Yusen was that the trial judge had erred in adopting a purposive interpretation of the term carrier in art 22 when there is no ambiguity in the wording of that article. On a literal reading of art 22, the limitation of liability only covers carriers and not their servants or agents. It was contended that the term carrier ought not to be given a meaning in art 22 which is different from that given to the same term in the context of arts 17, 18 and 19 in the light of the decision in Seagate. 49 We are not persuaded by these arguments. Under s 9A(1) of the interpretation Act (Cap 1), an interpretation of a provision of a written law that would promote the purpose or object underlying the written law would be preferred to an interpretation that would not promote that purpose or object. It has been held in a number of cases that in construing a statutory provision, it is not necessary that there should be any ambiguity or inconsistency before a purposive approach can be adopted: Constitutional Reference No 1 of 1995 [1995] 2 SLR 201, L & W Holdings Pte Ltd v Management Corporation Strata Title Plan No 1601 [1997] 3 SLR 905; Planmarine AG v Maritime and Port Authority of Singapore [1999] 2 SLR 1. 50 However, additional considerations should be taken into account in the interpretation of an international convention. In this respect, Lord Hopes enunciation on the proper approach to the construction of international conventions in Sidhu v British Airways [1997] AC 430; [1997] 1 All ER 193 is instructive. Following the decision of Lord Diplock in Fothergill v Monarch Airline Ltd [1981] AC 251, Lord Hope agreed that a purposive approach should be taken when interpreting international conventions which have the force of law in the country. It is permissible to make use of travaux prparatoires as an aid to interpretation provided that two conditions are satisfied: first, that the material involved is public and accessible, and, secondly, that the travaux prparatoires clearly and indisputably point to a definite legislative intention. Apart from the local decisions, reference could also be made to decisions by foreign courts where it may be of some assistance in ascertaining an interpretation of the convention which has received general acceptance in other countries. Such an Singapore Legal System 2009 Singapore Law Part I. International Law and

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approach is in line with the underlying purpose of international conventions as observed by the authors of Dicey and Morris The Conflict of Laws (12th Ed, 1993) at p 9: The purpose of an international convention is to harmonise the laws of all contracting states on the particular topic dealt with by the convention. It is therefore very important that the interpretation of the convention should be the same, so far as possible, in all contracting states. 51 Unlike the amended Warsaw Convention, the Warsaw Convention does not contain any express provision pertaining to the limitation of the liability of the servants or agents of carriers. Article 25A of the amended Warsaw Convention expressly limits the liability of a carriers agents or servants and states as follows: If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22. 52 Thus, the question before us is whether art 22(2) ought to be interpreted to include carriers agents and, in particular, whether such an interpretation would promote the objects and purposes of the Warsaw Convention. The position on this issue appears to be settled in the United States and the courts have held that art 22 confers the same limitation of liability to carrier as well as to the carriers agents and servants. . .. 55 We find a common feature in these cases: it is a recognition of the commercial reality that, if a plaintiff is permitted to sue the carriers agents or servants to recover the full extent of his loss, the carrier would indirectly have to be responsible for such losses through the provision of indemnities to its agents or servants acting in furtherance of the contract of air carriage. This would be contrary to one of the main objects of the Warsaw Convention, that is, to protect air carriers from claims beyond the prescribed limits. 56 In our view, it would not be unfair to prevent the consignor from claiming the entire loss from the carrier or its servants and agents when he has chosen not to declare the value of the goods in the airway bill. If a higher value has been declared for the goods, it is then open to the carrier to assess the risk and decide whether to ship the goods at higher freight charges together with the appropriate accompanying insurance cover. By not declaring the value of the goods, the consignor has assumed the risk that, in the event of any loss, he could only claim against the carrier for losses within the limits prescribed by the Warsaw Convention. As a matter of commercial prudence, the consignor would or should have insured himself against any additional loss over and above the liability limits under the Warsaw Convention. Neither the consignor nor its insurers exercising the right of subrogation should be permitted to recover the full value of the cargo in a claim against the carriers agents or servants when, as the trial judge pointed out, the agents or servants have not been paid extra to bear those risks and they are not likely to have insured themselves to bear such high risks for the protection of cargo with no declared value. 57 For the same reasons, we are of the view that the term carrier in art 22 ought to be given a purposive interpretation to include carriers servants or agents when they act in furtherance of the contract of carriage. We respectfully endorse the view taken by Singapore Legal System 2009 Singapore Law Part I. International Law and

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Mansfield J in Reed v Wiser that art 25A of the amended Warsaw Convention is a clarifying amendment to the Warsaw Convention. Support for this interpretation can also be found in the commentary by the authors of Air Law by Shawcross and Beaumont (4th Ed, Issue 74) on the introduction of art 25A in the amended Warsaw Convention at VII (741): Article 25A of the Convention as amended at The Hague contains an art 25A, clarifying what was almost certainly the meaning of the unamended text and operating to give protection in certain cases to the servants and agents of the carrier. [Emphasis added] 58 It is our considered opinion that the decision in Seagate does not preclude us from adopting such an interpretation of the article. The only issue before this court in Seagate was whether the term carrier in the context of arts 17, 18 and 19 includes the carriers agent such that the shippers cause of action against CIAS must be founded exclusively under the amended Warsaw Convention. The question of limitation of liability was not raised in that case. While there are no compelling reasons to depart from the plain and literal reading of arts 17, 18 and 19 and to take an expansive interpretation of the word carrier, the same cannot be said of the interpretation of art 22. In the context of art 22, to accord the term carrier its literal meaning and to exclude the carriers servants or agents from the limitation of liability would be incompatible with the spirit and purpose of both art 22 as well as the Warsaw Convention as a whole. 59 The recognition and implicit endorsement of such policy considerations can also be found in the judgment of Karthigesu JA in Seagate where he commented that the courts in the United States have generally held that the word carrier in art 22 and the other defences available to the carrier must be interpreted to include carriers agents and servants when they act in furtherance of the contract of air carriage. He observed at p 11: The main policy reason behind such an interpretation was to prevent plaintiffs from circumventing the Conventions objective of protecting air carriers from exorbitant claims in damages. To allow agents to be liable for the full extent of the damages would be to sanction an indirect route of claiming full damages against the air carrier itself, since the agents would almost inevitably claim an indemnity from their principal, the air carrier. Hence, under American law, when dealing with the Convention, the carriers agent will only be liable up to the limit in art 22, thus arriving at a result similar to that under the Amended Convention with its art 25A. [Emphasis added.] 60 We are aware of the common law presumption that the same meaning should be accorded to the same word which is used in different parts of the same instrument. But such a presumption can be easily displaced if the context so requires. As pointed out by Lord MacDermott in Madras Electric Supply Corp Ltd v Boarland [1955] AC 667 at p 685: The presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtues of an orderly and consistent use of language, but it must yield to the requirements of the context, and it is perhaps at its weakest when the word in question is of the kind that readily draws its precise import, its range of meaning, from its immediate setting or the nature of the subject with regard to which it is employed.

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61 The authors of Oppenheims International Law (9th Ed, 1993) noted at p 1270 that the principles of interpretation found in systems of municipal law are expressive of common sense and of normal grammatical usage, they commend themselves also in the interpretation of treaties. We agree. In our view, it is entirely justifiable to ascribe a different meaning to the term carrier for the purpose of determining the basis of liability and for the purpose of ascertaining the limits of liability in order not to frustrate the objects and purposes of the Warsaw Convention. Therefore, in our judgment, CIAS is entitled to limit its liability to Yusen for the loss of the cargo at S$49.58 per kg pursuant to art 22(2) of the Warsaw Convention.

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.C INTERNATIONAL LAW AND SINGAPORE COURTS .1 Introductory Note


The practice of the courts of Commonwealth countries is not entirely clear on the question of whether customary international law forms part of the national law. Some English scholars are of the view that customary international law forms part of the English common law. Section 3 of the Application of English Law Act (Cap 7A) provides that the common law of England, so far as it was part of the law of Singapore immediately before 12th November 1993, shall continue to be part of the law of Singapore. Therefore, if customary international law does form part of the English common law that was received in Singapore, it would be part of Singapore law. However, in practice the courts in many Commonwealth countries consider customary international law as part of the common law only in so far as the rules of customary international law have been accepted into law of that country by judicial decisions or Acts of Parliament. In any case, where there is a conflict between customary international law and an Act of Parliament, it is clear that the Act of Parliament prevails. Similarly, if there is a conflict between customary international law and a binding judicial decision, the judicial decision prevails. The courts in some Commonwealth jurisdictions often look to decisions of international tribunals when interpreting fundamental rights provisions. This is because the fundamental rights provisions are often taken from international human rights treaties. However, courts in Singapore have not followed this practice when interpreting the fundamental rights provisions in the Constitution of Singapore. There are several global conventions which have been generally accepted and which are generally regarded as either a codification or strong evidence of rules of customary international law. Although Singapore is not a party to several of these conventions, it may be bound by many of their provisions under customary international law. Examples of such treaties include the following: (1) 1961 Vienna Convention on Diplomatic Relations; (2) 1963 Vienna Convention on Consular Relations; Singapore Legal System 2009 Singapore Law Part I. International Law and

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and (3) 1969 Vienna Convention on the Law of Treaties. Therefore, the Courts in most Commonwealth jurisdictions may accept that the provisions in those conventions are part of the domestic law of that country, provided that the provisions are not inconsistent with an Act of Parliament.

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.2 International Human Rights Law and Singapore Law: Chan Sek Keong, Rethinking the Criminal Justice System of Singapore for the 21st Century
The Singapore Conference: Leading the Law and Lawyers into the New Millennium, 10-12 April 2000, paragraphs 18-22.
<http://app.subcourts.gov.sg/Data/Files/File/Speeches/RethinkingCriminalJusticeSystem.pdf>

IV New Challenges A International Front ... Fundamental rights in criminal justice 18 The development of a human rights jurisprudence based on the European Convention on Human Rights 1955 (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) will impact on our criminal justice system in relation to the fundamental rights of persons arrested and charged with committing crimes. In particular, it will affect our conception of a fair trial and the structure of rules of law, evidence and procedure to achieve a fair trial. The courts in the common law jurisdictions such as Canada, New Zealand, Hong Kong, South Africa, Zimbabwe and Belize, that have incorporated the ECHR or the ICCPR rights in their constitutions or bill of rights legislation will add to this body of jurisprudence. Sooner or later, this body of jurisprudence will knock at the door of our criminal justice system seeking to be let in. The vanguard is likely to be centred on two forms of punishments, viz., capital punishment and corporal punishment. The European Union seeks to free the world from capital punishment for all crimes. The Privy Councils stand on capital punishment is evident from the series of decisions it has given on appeals from the Caribbean states. The United Nations Human Rights Commission has recently issued a critical report on mandatory imprisonment in the Northern Territory of Australia. These developments presage what our criminal justice system can expect to face in the foreseeable future. 19 It should be noted that the existence of fundamental rights for suspects and accused persons is not in question. It is the scope of such rights that is in issue. Our Constitution s protects the fundamental personal rights, such as the right to life and personal liberty, the right against arbitrary arrest, the right to be informed of the grounds of arrest, the right to counsel, the right against double jeopardy, and the right not to be punished retrospectively. The fundamental rules of natural justice applicable to our criminal justice system were those applicable in Singapore on 16 September 1963 when it became part of Malaysia. The ECHR confers similar but broader rights inasmuch as they are expressed in open-ended language, and thus allowing the courts to interpret their scope according to the prevailing morality or ideology. Singapore Legal System 2009 Singapore Law Part I. International Law and

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20 The ECHR is now part of UK law by virtue of the Human Rights Act 1988 (HRA). Magnus Linklater, writing in the London Times, has warned that the ECHR it the tip of a massive iceberg heading our way from Strasbourg. We are just beginning to understand its dimensions. The HRA will impact on the future development of English criminal justice in areas such as (a) substantive criminal law; (b) investigative powers such as surveillance or entrapment; (c) criminal process; and (d) sentencing. Principles and procedural rules such as the right to a fair trial, the presumption of innocence, the right of silence or the right against self-incrimination will be subjected to scrutiny for consistency with the ECHR. They may affect the validity of reverse onus clauses, strict liability offences, the admissibility of evidence obtained illegally or by entrapment, the proportionality of punishment and many other aspects of criminal justice. 21 The ECHR is beginning to influence criminal justice in England even before the HRA comes into force. . . It will not be long be long before our courts are confronted with the English jurisprudence on the HRA. 22 The challenge to the values of our criminal justice system in future is whether the British iceberg will melt in our warm waters. The scope of fundamental rights in criminal justice has been examined by the Privy Council in two cases: Ong Ah Chuan v PP and Haw Tua Tau v PP. In both cases, the Privy Council declined to determine the list of fundamental rights beyond stating the principles required to dispose of the specific issues. To this extent, the Court of Appeal has a free hand, unencumbered by precedent, to determine the scope of these rights. In PP. v Mazlan, the Court of Appeal made the first decision. It rules that the privilege against self-incrimination was not a constitutional right. But, in future our courts may have to consider the ECHR paradigm of criminal justice and decide whether it suits our circumstances. In this connection, I draw your attention to an observation made in 1966 as follows: The search for the fundamental rules of natural justice in the criminal process promises to be an exciting endeavour for those concerned with and about criminal justice in Singapore.42

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.3 Customary International Law, International Human Rights Law, and Singapore Law: Nguyen Tuong Van v Public Prosecutor
Court of Appeal [2005] 1 SLR 103; [2004] SGCA 47 Introductory Note. We will examine the reasoning in this case on three issues. First, whether provision in an international convention was part of the common law of Singapore law. The provision in question was contained in the Vienna Convention on Consular Relations, 1963 (VCCR), which was adopted in Vienna on 24 April 1963. It entered into force on 19 March 1967. When this case arose there were about 160 States Parties, but Singapore was not a party. Singapore has subsequently become a party. The article in question in this case was Article 36 which reads as follows: Article 36. Communication and Contact with Nationals of the Sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. The second issue we will examine was whether sources of international law, including the 1948 Universal Declaration of Human rights, should be Singapore Legal System 2009 Singapore Law Part I. International Law and

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considered when interpreting Article 9 (1) of the Singapore Constitution. Article 9 (1) provides that No person shall be deprived of his life or personal liberty save in accordance with law. The Article of the Universal Declaration of Human Rights 1948 which was at issue is Article 5, which provides that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The UDHR was adopted as a General Assembly Resolution and was not intended to be legally binding. However, its provisions have been used as a model for national constitutions and many regional and international human rights treaties, and it is commonly accepted that its provisions are evidence of the principles of customary international law on human rights. Other human rights treaties, including the 1966 International Covenant on Civil and Political Rights contain similar provisions prohibiting cruel, inhuman or degrading treatment or punishment. The Court had to consider whether even though the Singapore constitution had no equivalent provision, this right was part of Singapore law either because it was a rule of customary international law which was part of the common law of Singapore, into Article 9 (1) of the Constitution. The third issue was whether if this right was part of Singapore law, whether it should be read in light of decisions of international courts and courts from other jurisdictions which have ruled that part of the prohibition against cruel and inhuman treatment or punishment was subject to the principles of proportionality and individualised sentencing. Background: The appellant was convicted of importing 396.2g of diamorphine into Singapore without authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (MDA) and sentenced to death. He appealed against both his conviction and his death sentence. In arguing against his conviction, the appellant repeated the submissions made before the trial court that . . (b) the oral and cautioned statements made by him were inadmissible as they were taken in breach of Art 36(1) of the Vienna Convention on Consular Relations 1963 (VCCR), which provides for consular access for an accused who has been arrested by another State; . .. In attacking the legality of the death sentence, the appellant submitted. . (c) death by hanging was grossly disproportionate in relation to the offence and was a cruel, inhuman and degrading punishment constituting a breach of international law; Singapore Legal System 2009 Singapore Law Part I. International Law and or because it was a rule of customary international law which could be read

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23 Counsel for the appellant submitted that the trial judge had erred in law and in fact in ruling that Art 36(1) of the VCCR had not been breached and in admitting into evidence the oral statement of the appellant in which he admitted, inter alia, knowledge that the two packets contained heroin and that he was carrying them to someone in Australia. In this connection, counsel for the appellant made three points. Firstly, Art 36(1) of the VCCR bound Singapore. Secondly, Art 36(1) was breached because the appellant only met with a member of the Australian High Commission 20 hours after he was detained and the appellant was questioned before that time. Thirdly, the breach of Art 36(1) prejudiced the appellant. It was submitted that the breach operated unfairly against the accused as he was not advised of his rights and did not have the opportunity to consult a consular officer until 3.30pm on 13 December 2002, after the cautioned statement was recorded. We are of the view that these submissions are without merit. In the light of the evidence, the trial judge was right in finding that there was no breach of Art 36(1). 24 The VCCR is a key instrument in the regulation and conduct of consular activities. There is an established practice for a State which has arrested a national of another State to notify the consular officers of the State of the accused person. Although Singapore is not a party to the Convention, Singapore does conform with the prevailing norms of the conduct between States such as those set out under Art 36(1), to which we now turn. 25 Article 36(1) has two aspects. Under Art 36(1)(b), the authorities of the receiving State shall, without delay, inform the consular post of the sending State if a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. This will be done if the national so requests. The other aspect to note is that under Art 36(1)(c) when the consular post is aware of such a case, its officers shall have the right to visit [that national] to converse and correspond with him and to arrange for his legal representation. . . . 34 We now turn to the question of the admissibility of the statements in the event that Art 36 is breached. The trial judge observed that if there was a resultant prejudice, the court might exclude statements recorded from an accused person. This resembled Mexicos argument that consular notification must occur immediately upon detention and prior to any interrogation. The ruling of the ICJ is apposite. It ruled at [127] that the question of admissibility of a statement is one which has to be examined under the concrete circumstances of each case by the United States courts concerned in the process of their review and reconsideration. We agree with the Prosecution that it bears reminding that Art 36(2) provides that the rights created under the Article are subject to domestic legislation, in the following terms: The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State. 35 In our criminal justice system, the fundamental procedural principle is that the nature of any violation and possible prejudice must be considered under and in the light of our rules governing admissibility to be found in s 122(5) of the CPC or s 24 of the Evidence Act. These rules ensure the voluntariness with which statements are made and the reliability of confessions and admissions. . .

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80 Second, it was argued that even if the mandatory death sentence was not arbitrary, execution by hanging amounted to cruel and inhuman treatment or punishment. 81 We will consider each argument in turn.

Arbitrary punishment 82 It is well established that the phrase in accordance with law in Art 9(1) connotes more than just Parliament-sanctioned legislation. In Ong Ah Chuan at 62, [26], Lord Diplock held that the reference to law was to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. 83 We do not propose to examine each decision in detail. However, in both Watson v The Queen and Reyes v The Queen, the mandatory death penalty in respect of certain classes of murder was ruled unconstitutional as a violation of the prohibition against cruel or inhuman treatment or punishment. In Matthew v The State and Boyce v The Queen, the Privy Council would have ruled the same way but for certain saving provisions in the relevant national Constitutions which preserved pre-existing national laws. 84 Reyes v The Queen, an appeal from Belize, was considered and distinguished by the trial judge below. In this case, the Privy Council ruled that the mandatory death penalty for murder by shooting was unconstitutional, since to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which s 7 [of the Constitution of Belize] exists to protect. Section 7 of the Belize Constitution provides that [n]o person shall be subjected to torture or to inhuman or degrading punishment or treatment. There is no equivalent in our Constitution nor in any local Act of Parliament. This was a ground for distinguishing Reyes v The Queen. 85 The case was decided in the light of the various international norms that had been accepted by Belize as consistent with the fundamental standards of humanity: at [27]. The Privy Council considered the content of a plethora of international arrangements for the protection of human rights, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights. These arrangements, together with a wealth of jurisprudence emanating from national, regional and international courts, showed that an integral part of the prohibition against cruel and inhuman treatment or punishment was proportionality and individualised sentencing. It was against this background that the Privy Council ruled s 102(3)(b) of the Belize Criminal Code, which referred to any murder by shooting, to be indiscriminate and therefore void. 86 The above observations equally apply to Watson v The Queen, which is the Privy Council decision of 7 July 2004 in which Ong Ah Chuan was said to be of doubtful authority. The relevant passages at [29] and [30] read: It is no longer acceptable, nor is it any longer possible to say, as Lord Diplock did on behalf of the Board in Ong Ah Chuan v Public Prosecutor Singapore Legal System 2009 Singapore Law Part I. International Law and

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[1981] AC 648, 674, that there is nothing unusual in a death sentence being mandatory. As Lord Bingham pointed out in Reyes, p 244, para 17, the mandatory penalty of death on conviction of murder long pre-dated any international arrangements for the protection of human rights. The decision in that case was made at a time when international jurisprudence on human rights was rudimentary The history of these developments is fully set out in Reyes. It is as relevant to the position under the Constitution of Jamaica as it was in that case to Belize. There is a common heritage. In Minister of Home Affairs v Fisher [1980] AC 319, 328 Lord Wilberforce referred to the influence of the European Convention in the drafting of the constitutional instruments during the postcolonial period, including the Constitutions of most Caribbean territories. That influence is clearly seen in Chapter III of the Constitution of Jamaica. 87 However, we are of the view that the mandatory death sentence prescribed under the MDA is sufficiently discriminating to obviate any inhumanity in its operation. It is therefore constitutional. 88 The common law of Singapore has to be developed by our Judiciary for the common good. We should make it abundantly clear that under the Constitution of our legal system, Parliament as the duly elected Legislature enacts the laws in accordance and consistent with the Constitution of Singapore. If there is any repugnancy between any legislation and the Constitution, the legislation shall be declared by the Judiciary to be invalid to the extent of the repugnancy. Any customary international law rule must be clearly and firmly established before its adoption by the courts. The Judiciary has the responsibility and duty to consider and give effect to any rule necessarily concomitant with the civil and civilised society which every citizen of Singapore must endeavour to preserve and protect. Cruel and inhuman treatment or punishment 89 We now turn to the appellant counsels argument that the specific mode of execution is contrary to the prohibition in customary international law against cruel and inhuman treatment or punishment, which is part of the in accordance with law requirement in Art 9(1). The appellant relied on Art 5 of the UDHR in support of this proposition. Art 5 provides: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 90 To succeed on this ground of appeal, the appellant must first show that the prohibition against cruel and inhuman treatment or punishment amounts to a customary international rule. Next, the appellant must show that a specific prohibition against hanging as a mode of execution is part of the content of that rule in customary international law. 91 There is no difficulty with the first part of the appellants argument. It is quite widely accepted that the prohibition against cruel and inhuman treatment or punishment does amount to a rule in customary international law. The Prosecution also has not made any assertions to the contrary. The following is a useful summary of the position in customary international law; see Restatement of the Law: Third Restatement of US Foreign Relations Law, Vol 2 (1987) at 165, 702, reproduced in D J Harris, Singapore Legal System 2009 Singapore Law Part I. International Law and

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Cases and Materials on International Law (Sweet & Maxwell, 5th Ed, 1998) at 725 and 728: Capital punishment, imposed pursuant to conviction in accordance with due process of law, has not been recognised as a violation of the customary law of human rights. It may, however, constitute cruel and inhuman punishment if grossly disproportionate to the crime. Torture as well as other cruel, inhuman, or degrading treatment or punishment, when practiced as state policy, are violations of customary international law. 92 However, there is simply not sufficient State practice to justify the next part of the appellant counsels argument as to the content of this customary international rule. The appellant was unable to show a specific customary international law prohibition against hanging as a mode of execution. Indeed, the passage quoted above shows that there is not enough evidence at this time to show a customary international law prohibition against the death penalty generally. According to a report from the UN Commission on Human Rights, Question of the Death Penalty: Report of the Secretary-General submitted pursuant to Commission resolution 2002/77 UN ESCOR, 59th Sess, UN Doc E/CN.4/2003/106 (2003), as at 1 December 2002, the status of the death penalty worldwide was as follows: Number of retentionist countries Number of completely abolitionist countries Number of countries abolitionist for ordinary crimes only Number of countries that can be considered de facto abolitionist 71 77 15 33

The number of States retaining the death penalty was almost equal to the number of States that had abolished it. In most States retaining the death penalty, the mode of execution is by hanging or shooting. 93 The appellant relied on the US Ninth Circuit Court of Appeals decision in Campbell v Wood 18 F 3d 662 (1994) for their information as to the risk of asphyxiation or decapitation inherent in the procedure of hanging. However, it is worth pointing out that the majority of the Court of Appeals convened en banc decided that hanging did not amount to cruel and inhuman treatment or punishment. The trial judge rightly observed this in his judgment. 94 We agree with the trial judges reasoning on the effect of a conflict between a customary international law rule and a domestic statute. The trial judge held that even if there was a customary international law rule prohibiting execution by hanging, the domestic statute providing for such punishment, viz, the MDA, would prevail in the event of inconsistency. The trial judge cited Chung Chi Cheung v The King [1939] AC 160 and Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1 in support of this proposition. The appellants submissions are therefore rejected.

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.4 Courts and the Executive Prerogative in Foreign Affairs: Lee Hsien Loong v Review Publishing Co Ltd and Anor
[2007] 2 SLR 453; [2007] SGHC 24 Introductory Note: This case raises two circumstances when the doctrine of separation of powers dictates that domestic courts not deliberate on issues of foreign affairs that are the prerogative of the executive. The rationale is that a decision of the court which is contrary to the policy of the Ministry of Foreign Affairs may embarrass the executive branch and make it more difficult for them to conduct foreign affairs. The first example is the issuance of an Executive Certificate by the executive branch on factual situations on sensitive foreign policy questions. Section 7 of the Diplomatic and Consular Affairs Act provides that certificate issued by or on behalf of the Minister shall be conclusive evidence on any question whether any person is entitled to any privilege or immunity under this Act. Similarly, section 18 of the State Immunity Act provides that A certificate by or on behalf of the Minister for Foreign Affairs shall be conclusive evidence on any question (a) whether any country is a State for the purposes of Part II, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State. The second issue that is mentioned in this case is whether a particular issue is justiciable in the national courts. National courts are often reluctant to decide on the legality of questions that would have serious consequences for the executive branch in carrying out is foreign policy. For example, the U.S. Supreme Court has consistently refused to rule on the issue of whether an ongoing armed conflict (such as the Vietnam War) was legal under international law or U.S. constitutional law. Such matters of high policy are said to be immune from judicial review. Headnote: The respondents were, respectively, the Prime Minister and the Minister Mentor of Singapore. The first appellant was the publisher of the Far Eastern Economic Review (the Review), a current affairs magazine that has an international circulation. The Singapore Legal System 2009 Singapore Law Part I. International Law and

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second appellant was the author of an article published in an issue of the Review, the contents of which the respondents took offence at. They each commenced separate actions against the first and second appellants. The respondents applied for leave to serve the writs out of the jurisdiction and their applications were granted. Service was effected by a process server by personally serving the second appellant and by leaving copies of the writs of summons, statements of claim and relevant court orders at the registered address of the Review. The appellants challenged the jurisdiction of the court on two main grounds, both in the court below and on appeal: (a) the order granting leave to serve the writs out of the jurisdiction ought to be set aside as an abuse of the process of the court because the claims for damages and for injunctive relief contained in the writs were not confined to damages sustained or actions taken within Singapore; and (b) even if leave to serve the writs out of the jurisdiction had been properly granted, the writs had not been served in an appropriate manner because service had not been effected in accordance with the Treaty on Judicial Assistance in Civil and Commercial Matters between the Republic of Singapore and the Peoples Republic of China (the PRC) (28 April 1997), GN No T2/2001, Bilateral Treaty No B459 (ratified by Singapore 29 April 1998) (the Treaty). Sundaresh Menon JC . . . . Manner of service 69 The second basis upon which the appellants challenge the jurisdiction of this court relates to the manner in which service was effected. The appellants contend that the jurisdiction of this court over a foreign defendant may be exercised only if service of the writ in the foreign jurisdiction has been effected in an appropriate manner: see s 16(1)(a)(ii) of the SCJA and [20][21] above. The respondents had sought to effect service using a process server in Hong Kong who personally served Mr. Restall and left a copy of the relevant documents at the registered address of the Review. The respondents submitted that this method of service was appropriate because all that O 11 r 4(2)(c) of the Rules requires is that service be effected by a method authorised by the law of that country for service of any originating process issued by that country. The methods of service employed by the respondents are consistent with those allowed under the relevant rules of Hong Kong: see O 10 read with O 65 of Hong Kongs Rules of the High Court (Cap 4A) and s 356 of the Companies Ordinance (Cap 32); and further, W S Clarke, Hong Kong Civil Court Practice (LexisNexis, Desk Edition, 2003) at pp 5054 and 747751. 70 The appellants, on the other hand, submitted that the respondents position was misconceived because the applicable provision under the Rules for purposes of this case was O 11 r 4(1) and not O 11 r 4(2) as there subsists a civil procedure convention between Singapore and Hong Kong by which the respondents were to abide. The appellants submitted that service that was not effected in accordance with O 11 r 4(1) was not proper service and ought to be set aside. The civil procedure convention in question is the Treaty ([5] supra) which was concluded between the Peoples Republic of China (PRC) and Singapore on 28 April 1997 (i.e., at a time when Hong Kong was still under British rule). 71 The respondents countered this in two ways. First, they produced a letter from the Ministry of Foreign Affairs dated 13 October 2006 (the MFA letter) which stated as follows: Singapore Legal System 2009 Singapore Law Part I. International Law and

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2. The application of a treaty to Hong Kong is governed by Article 153 of the Hong Kong Basic Law, which provides that such matters are to be decided by the Central Peoples Government after seeking the views of the Government of the Hong Kong Special Administrative Region. 3. The Department of Justice of the Hong Kong Special Administrative Region has confirmed to us that the Treaty is not applicable. This was later reiterated in a letter dated 8 November 2006 in which the Ministry of Foreign Affairs also stated that it regarded the confirmation by the Department of Justice of Hong Kong that the Treaty does not extend to Hong Kong as authoritative. Second, the respondents maintained that whether the Treaty extended to Hong Kong was a question of Hong Kong law, and, in support of their position, they produced an expert opinion from a senior practitioner at the Hong Kong Bar, Mr. Rimsky Yuen SC. Mr. Yuens opinion also addressed the question of whether the manner of service employed on the respondents behalf was in accordance with the laws of Hong Kong. 72 In response, the appellants produced an expert opinion from Prof Gillian Doreen Triggs who opined that the question whether the Treaty extended to Hong Kong was one of public international law. In her opinion, the Treaty did so extend. The respondents then filed the expert opinion of Prof Alan Vaughan Lowe, who reached the opposite conclusion to Prof Triggs as a matter of public international law. 73 I propose to analyse the submissions as to the applicability of the Treaty to Hong Kong in two stages. First, what is the effect of the MFA letter? How much weight is to be accorded to it? Is it merely relevant evidence, or is it, as Mr. Singh proposed, decisive? Second, if the MFA letter does not dispose of the matter, have the respondents proved their position on a balance of probabilities? Effect of the MFA letter 74 Article 29 of the Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331 (entered into force 27 January 1980) (the VCLT) provides that unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. The question then is whether a different intention appears from the Treaty or has otherwise been established in this context. The MFA letter may be potentially relevant to the extent that it sheds light on the intention of the signatories to the Treaty at the relevant time. If both Singapore and the PRC had intended that the Treaty would or would not apply to Hong Kong, that would certainly be relevant evidence. A second way in which the MFA letter might potentially be material is as evidence of subsequent state practice in the application of the treaty, which, under Art 31(3)(b) of the VCLT, is to be taken into account in interpreting a treaty. .... 95 It is appropriate now to take stock of the general principles that may be distilled from the foregoing discussion. In my judgment, the issue is much more textured than it at first appears. The first point to be made is that there are clearly provinces of executive decision-making that are, and should be, immune from judicial review. This comes as no surprise and is merely a reflection of the constitutional doctrine of the separation of powers. The doctrine of the separation of powers, as seen from the dicta cited above, undoubtedly informs the constitutional structure of the Singapore Legal System 2009 Singapore Law Part I. International Law and

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Westminster model of governance, on which our own constitutional framework is based. 96 Second, within the span of executive decisions that are immune from judicial review are those involving matters of high policy. This includes such matters as dissolving Parliament, the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of the armed forces and issues pertaining to national defence. These are what the American courts call political questions and the reasons underlying the deference accorded to the executive branch of government in such areas have been articulated in the cases I have referred to. In my judgment, cases concerning international boundary disputes or the recognition of foreign governments comfortably fall within this class of cases. 97 Third, apart from issues of foreign affairs or national defence, there are other areas that the court will no doubt find unjusticiable. These include cases concerning the interpretation of international treaties operating solely on the international plane, or where the legislature has made it clear that the question is reserved to the executive to answer, such as in the Singapore Airlines case ([79] supra), where s 18 of the State Immunity Act specifically requires a certification from the government that the country in question is recognised for the purposes of exempting them from lawsuits in Singapore. 98 Fourth, even if, prima facie, a case comes within what appears to be a nonjusticiable area, the courts may intervene if, on closer scrutiny, it becomes clear that it does not. Thus, where what appears to raise a question of international law in fact bears on the application of domestic law, that is something the courts may well find justiciable. There may also be situations where the courts are able to isolate a pure question of law from what may generally appear be a non-justiciable area (see, for example, Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 at [12], a decision of the Federal Court of Australia that was cited by Mr. Low). These instances do not suggest that the theory of the separation of powers is illusory, only that it is to be interpreted and applied sensibly. In my judgment, the correct approach is not to assume a highly rigid and categorical approach to deciding which cases are not justiciable. Rather, as Laws LJ put it in Marchiori ([94] supra) at [39], the intensity of judicial review will depend upon the context in which the issue arises and upon common sense, which takes into account the simple fact that there are certain questions in respect of which there can be no expectation that an unelected judiciary will play any role. In this regard, the following principles bear noting: (a) Justiciability depends, not on the source of the decision-making power, but on the subject matter that is in question. Where it is the executive that has access to the best materials available to resolve the issue, its views should be regarded as highly persuasive, if not decisive. (b) Where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to materials, the courts should shy away from reviewing its merits. (c) Where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain.

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(d) In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches. Even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable. 99 With these principles in mind, I turn to the question posed: whether the view given in the MFA letter as to the applicability of the Treaty to Hong Kong should be treated as binding on this court. It is useful here to take a moment to properly characterise the nature of the question in issue. The essence of what has to be determined in these appeals is not whether the making of the Treaty was advisable or whether Singapore recognised Hong Kong as part of the PRC or even whether the Singapore Government did in fact sign a treaty with Hong Kong. What falls to be determined is whether the Treaty applies to Hong Kong; and the answer to that critical question depends, first and foremost, upon an interpretation of that Treaty, a number of other international instruments and, as the MFA letter itself points out, Art 153 of the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China (Cap 2101) (the Basic Law). In other words, we are here concerned with the interpretation of a treaty and a foreign statute in the light of some international instruments. 100 This description of what is at stake in these appeals removes us from almost all the cases cited by Mr. Singh. Those cases concerned the recognition of foreign governments, boundary disputes, sovereign immunity and the deployment of troops overseas all involving exercises of sovereign or legislative prerogative in matters of high policy. The issue that concerns the present appeals, on the other hand, does not implicate the exercise of executive prerogative at all. The concern here is not with the making of the Treaty, but with its effect. To put it another way, the MFA letter does not represent an exercise of prerogative powers; it is essentially a statement of the MFAs opinion as to what the effect of the Treaty is. 101 The closest of the foregoing principles relevant to the present appeals is the holding of Simon Brown LJ in CND ([86] supra) that the courts should not expound on the meaning of an international document operating purely on the international plane. But, as I read that case, the true concerns there were that the judiciary should not be involved in policing the governments conduct of its international affairs, and that it would be arrogant to assume that it should interpret a treaty that affects the international community, particularly given that there is the International Court of Justice to do so. Moreover, CND involved considerations of foreign policy. 102 The present appeals are different. They do not engage any sort of foreign policy considerations. Indeed, the respondents position would be contradictory if they asserted otherwise since, in explaining why any extension of the Treaty to Hong Kong would have been accompanied by formal consultations and procedures, they argue that the Treaty does not fall within the foreign policy exception to Art 153 of the Basic Law (see, below, at [117][118]). Neither does this case involve the policing of the governments conduct of international affairs. Quite the opposite: we are concerned only with the procedures to be adopted when private litigants wish to serve the process of this court on defendants resident in Hong Kong. 103 Furthermore, to the extent that this court is required to construe a bilateral treaty in the light of international law principles and certain international instruments, it Singapore Legal System 2009 Singapore Law Part I. International Law and

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is only to determine the domestic legal obligations applicable to litigants seeking to invoke this courts jurisdiction pursuant to the Rules and the SCJA. As was noted in Pacific Assets ([18] supra at [14]), citing Hong Kong Housing Authority v Hsin Yieh Architects & Associates Ltd [2005] 1 HKLRD 801 at [85], it is a long-standing principle of private international law that matters of procedure (including procedures concerning service) are ultimately governed by the lex fori. In my view, such an inquiry would comfortably fall within the proper sphere of judicial inquiry. 104 Accordingly, in my judgment the MFA letter, though potentially of assistance to this court, is not decisive of the matter. . . . 124 In the present case, I am persuaded by the logic of both Prof Lowes and Mr. Yuens evidence and hold, on a balance of probabilities, that the Treaty does not extend to Hong Kong for the reasons set out in this judgment. The views of the MFA and the Hong Kong Department of Justice also weigh strongly in favour of the respondents position. The position of the PRC was not expressly articulated, but its stance, in my judgment, is far more consistent with the position of Singapore and Hong Kong rather than with that urged upon me by the appellants. As against this, Prof Triggs report is not only counter-intuitive as explained above, it lacks foundation in some important respects. For instance, while Prof Triggs states that it is critical to get the views of the PRC, she has not herself obtained such views. She made her initial findings without having had sight of the Chinese and UK Notes, despite those being available on the Internet. She failed to consider the Joint Declaration in her first report even though this had already been raised and discussed in Mr. Yuens report. While the appellants do not bear the legal burden of proving that the writs were served in the wrong manner, they do have the evidential burden to rebut the case submitted by the respondents. This, they failed to meet. In the light of the foregoing discussion, I am satisfied that the respondents have discharged their burden of proving that the service of process was proper and ought not to be set aside. Conclusion 125 The central question raised in these appeals is whether the respondents have complied with the rules and procedures necessary to invoke this courts jurisdiction. In the main, this turned on two questions: (a) whether their claims, as required by the subrules of O 11 r 1 of the Rules, are limited to damages and injunctive relief within Singapore; and (b) whether the manner of service employed was appropriate in the circumstances. The burden of proof on both these issues lay with the respondents. In my judgment, they have discharged that and I answer the two questions in the affirmative. I therefore dismiss the appeals. As I indicated to both parties at the hearing of these appeals, I will hear them on costs and any other ancillary matters.

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.5 Singapore Courts and State Immunity: Republic of the Philippines v Maler Foundation and Others
Court of Appeal [2008] 2 SLR 857; [2008] SGCA 14 Chan Sek Keong CJ (delivering the judgment of the court): Introduction 1 The Republic of the Philippines (the Appellant) has appealed against the decision of Kan Ting Chiu J (the Judge) dismissing its application in Summons No 3874 of 2006 (the Stay Application) to stay the interpleader proceedings in Originating Summons No 134 of 2004 (the Interpleader Summons) on the basis of state immunity (see WestLB AG v Philippine National Bank [2007] 1 SLR 967 (the Judgment)). 2 The interpleader proceedings concern competing claims to certain moneys (the Funds) which are held in an escrow account in the name of Harry Elias Partnership (HE&P), the solicitors for Philippine National Bank (PNB), for the credit of the said proceedings. The Funds were originally held in escrow in PNBs account with WestLB AG, Singapore (WLB) pending the determination of the ownership of or the title to the Funds by the courts of the Philippines, upon which event the escrow would automatically terminate. On 15 July 2003, the Supreme Court of the Philippines ordered that the Funds be forfeited to the Appellant on the ground that they were the ill-gotten gains of the former President of the Philippines, the late Ferdinand E Marcos, and Mrs Imelda R Marcos. 3 However, before WLB could release the Funds to PNB as the account holder, eight other claimants notified WLB of their claims to the Funds on various grounds. As a result, WLB took out the Interpleader Summons to interplead the conflicting claims of the nine claimants. PNB was named as the first defendant in the Interpleader Summons. Five foundations, viz, the Maler Foundation, the Avertina Foundation, the Palmy Foundation, the Vibur Foundation and the Aguamina Corporation (collectively referred to as the Foundations), which are the first to fifth respondents in this appeal, were named as the second to sixth defendants. The seventh defendant in the Interpleader Summons (the sixth respondent in this appeal) is collectively the plaintiffs in the Estate of Ferdinand E Marcos Human Rights Litigation in Case No MDL840-R in the United States District of Hawaii (the HR Claimants), who had obtained damages from the Hawaiian district court on 3 February 1995. The eighth and the ninth defendants have withdrawn from the interpleader proceedings and are not parties to this appeal. Hereafter in this judgment, the Foundations and the HR Claimants will be referred to collectively as the Respondents. How and why the Funds came to be deposited in Singapore 4 The Funds (which at this time amounted to about US$25m inclusive of interest) were originally part of a larger pool of assets (the Marcos assets) held in the Swiss bank accounts of the Foundations. They came under the jurisdiction of the Singapore courts in rather unusual circumstances. The journey began on 28 February 1986, two days after former President Ferdinand E Marcos and his family fled the Philippines, when the Appellant set up a commission called the Presidential Commission on Good Government (PCGG) to recover [all the] ill-gotten wealth accumulated by former Singapore Legal System 2009 Singapore Law Part I. International Law and

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President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad during his presidency. Some of the assets in question were the Marcos assets, which, as at 31 January 2002, amounted to more than US$658m with accrued interest. 5 The PCGG sought the assistance of the Swiss authorities to recover the Marcos assets from the Foundations. On 24 March 1986, the Swiss Federal Council issued an interim order freezing the Marcos assets pursuant to a Swiss federal law, viz, the International Mutual Assistance for Criminal Matters Act (IMAC), in anticipation of a formal request from the Appellant for assistance under the IMAC. Such assistance was formally sought on 7 April 1986. Pursuant to the procedures under the IMAC, the investigating magistrates in the Swiss cantons of Zurich, Fribourg and Geneva issued freezing orders against the Marcos assets between April 1986 and January 1990. These orders superseded the interim freezing order made earlier by the Swiss Federal Council. ... The issues and arguments on appeal 26 The issues and arguments presented by the parties in this appeal are substantially the same as those considered by the Judge. The main issues are as follows: (a) whether the Appellant has a sufficient interest in the Funds to assert state immunity; . . . Issue (a) is one of law. It raises the question of whether sovereign immunity may be asserted by a state against intangible property in the nature of debts or choses in action (such as the Funds) which are in the possession or control of a third party, that is to say, a party which is not an agent or a trustee of the state. It also raises policy and practical considerations as to the ultimate disposal of such property where the third party is unwilling to release the property to the state on account of conflicting claims having been made against the property. . . . Does the Appellant have a sufficient interest in the Funds to assert state immunity? State immunity and stay of proceedings impleading a sovereign states property 33 It is an established principle at common law that a foreign sovereign state is immune to the jurisdiction of our courts and may not be impleaded directly or indirectly in any action before our courts without its consent. The court will stay any such action if state immunity is invoked. These principles are now contained in s 3 of the SIA, which provides as follows: General immunity from jurisdiction. 3.(1) A State is immune from the jurisdiction of the courts of Singapore except as provided in the following provisions of this Part [ ie, Pt II of the SIA]. (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question. Sovereign or state immunity issues are not new to the courts of Singapore, but they are rare. The last occasion on which a sovereign asserted immunity to proceedings in a Singapore court occurred in the Privy Council case of Sultan of Johore v Abubakar Singapore Legal System 2009 Singapore Law Part I. International Law and

Topic 4. International Law and Singapore Courts

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Tunku Aris Bendahar [1952] AC 318 (Sultan of Johore), where it was held that the then Sultan of Johor had submitted to the jurisdiction of our courts. Although the courts jurisdiction to stay proceedings against a state on the basis of state immunity is set out in the SIA, the common law continues to apply to determine when a court will recognise sovereign immunity in any particular case. The present appeal raises specific issues on the scope of sovereign immunity which are novel in that they have not been directly decided by any common law court (although persuasive dicta are found in some of the decisions of the House of Lords discussed at [35][36] below). . . . 34 The doctrine of state immunity is founded on the concept of the equality, independence and dignity of states and the principle that an equal has no authority over another equal: see the United States Supreme Court decision of The Schooner Exchange v McFaddon 11 US 116 (1812). In Juan Ysmael ([24] supra), Earl Jowitt said (at 86) that: The basis of the rule is that it is beneath the dignity of a foreign sovereign government to submit to the jurisdiction of an alien court, and that no government should be faced with the alternative of either submitting to such indignity or losing its property. . . . . 37 In all three cases mentioned in the preceding paragraph, the states in question were able to prove that the properties to which they claimed title were in the possession and/or control of their agents, or, in the case of Dollfus Mieg, in the possession of their bailees, against whom they were entitled to immediate possession. The issue that arises in the present appeal is whether a sovereign state which can show an arguable claim to an interest in property, but which does not have control or possession of that property through an agent or a trustee, is entitled to assert immunity to stay any proceedings in which an adverse claim is made against the property. The English judges are divided on this question, although they generally agree that the doctrine of sovereign immunity is not absolute under English law and that it should not be extended unnecessarily: see The Cristina at, inter alia, 494, 498, 515 and 521522. For instance, the English Court of Appeal decided in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 that the commercial acts of a foreign state were not immune from the jurisdiction of the English courts. This principle is now enacted in s 5 of the SIA. . . 45 However, we should add that our main ground for not remitting the threshold issue to the Judge for determination is that, in our view, the doctrine of state immunity should not be extended to a case like the present at all. There are two distinct features in this case that make it fall outside the established parameters of the doctrine. The first is that the property concerned, ie, the Funds, is in the nature of a debt or chose in action which is in the hands of a third party, viz, PNB as the escrow agent. The second is that the competing claims to the Funds have been interpleaded and the Funds are under the control of the court. Apropos these issues, the Respondents have argued that sovereign immunity is not applicable to property which is not in the possession and/or control of the sovereign state but in the hands of a third party against whom conflicting claims have been made, and that the Appellant does not have a recognisable interest in the Funds. Both issues overlap to the extent that they involve the same legal and policy considerations. In our view, there are merits in the Respondents arguments on both issues, which we will now address. . . . 53 Having regard to the circumstances of this case, we are of the view that the doctrine of sovereign immunity should not be extended to a case involving debts or choses in action in the possession or control of a third party in respect of which the claimant state has yet to prove its ownership. . . . Singapore Legal System 2009 Singapore Law Part I. International Law and