The Singapore Journal of Legal Studies
is the flagship law journal of the Faculty of Law,
National University of Singapore and one of the oldest law
journals in the Commonwealth. As the first and leading legal
journal in Singapore, it contains a rich store of legal
literature analysing the legal, political and social development
of Singapore in its progression from a developing to a First
World nation. The journal continues to advance the boundaries
of global and local developments in law, policy and legal
practice by publishing cogent and timely articles, legislation
comments and case notes on a biannual basis.
The highlights of this issue include...
A special feature comprising a series of 4 articles from the “Contemporary Issues in Public Law Litigation” conference organised by the Centre for Asian Legal Studies, the National University of Singapore, Faculty of Law and convened by Swati Jhaveri and Kevin Tan. This feature is a follow-up and complement to the first special feature, which also featured articles from the afore-mentioned conference and was published in the September 2019 issue of the Singapore Journal of Legal Studies.
Introduction: Contemporary Issues in Public Law—Theory, Doctrine and Practice, Swati Jhaveri explores how the featured articles address pressing and increasingly relevant issues in public law, viz. questions of access to judicial review, procedural issues relating to the conduct of judicial review proceedings and issues relating to the theoretical foundations or substantive doctrine utilised by judges to adjudicate these disputes.
In A Place to Stand to Move the Earth: Standing and the Rule of Law, Jack Tsen-Ta Lee proposes recasting the standing rules (locus standi) in public law to focus on an applicant’s suitability to bring a claim and whether the claim is sustainable on its merits. He argues that this approach to standing accords better with the courts’ role as a check on the political branches of government and their duty to uphold the rule of law.
In Ousting Ouster Clauses: The Ins and Outs of the Principles Regulating the Scope of Judicial Review in Singapore, Thio Li-ann examines the scope of judicial review in administrative law in Singapore in the face of partial or complete legislative ouster clauses. She also identifies and evaluates the suitability and persuasiveness of different factors that have been considered relevant in ascertaining the legitimacy of an ouster clause.
In The Application of Administrative Law Principles in Private Law: The Case for Convergence, Calvin Liang considers the application of administrative law principles to metanational private organisations as opposed to the state. His article recognises that the basis of administrative law in the common law has always been the courts’ duty to protect individuals from the effects of dominant power – which is now increasingly held by such metanational organisations. His article interrogates how judicial review principles—developed to control dominant state-based power—can be adapted to regulate the contractual relationships between private organisations and individuals and the wide-ranging implications of this shift in power.
Last but not least, in Commercial Judicial Review in Singapore: Strategic or Spontaneous?, Eugene K B Tan posits that judicial review is an increasingly important remedy for companies in Singapore seeking to protect their interests against what they regard as unfair or unlawful government or regulatory actions. He further scrutinises why such a trend has arisen and the need for private sector entities—who are embracing public law litigation—to support administrative law values such as legality, fairness, and accountability.
There are 11 separate articles apart from the special feature. They span a smorgasbord of topics from private law to public law and spotlight both domestic concerns and transnational issues.
In Fraudulent Sex Criminalisation in Singapore: Haphazard Evolution and Accidental Success, Jianlin Chen examines the evolution of fraudulent sex criminalisation in Singapore and makes two contributions to the surrounding discourse. First, he demonstrates that the major amendments to the relevant Penal Code provisions (ie in 2007 and 2019) were made pursuant to an attempted importation of English legal provisions. Second, he argues that the 2019 reform is desirable – it brings the plain-wording of the statutory provisions in line with what the government is prepared to fully enforce and ensures that the ostensible decriminalisation of fraudulent sex is mitigated.
In Rethinking Bankruptcy Alternatives in Singapore, Jodi Gardner analyses the wide variety of bankruptcy alternatives in Singapore, which allow individuals to be released from debts without the strict processes and consequences of formal bankruptcy while simultaneously maximising the returns to creditors. She highlights the benefits and detriments of the processes available and outlines some potential reforms to provide a comprehensive and accessible regime.
In The Failed Hopes of Disintermediation: Crypto-Custodian Insolvency, Legal Risks and How to Avoid Them, Matthias Haentjens, Tycho De Graaf and Ilya Kokorin explore the rights crypto-investors (who have deposited cryptocurrency with crypto-custodians) can and should be able to assert in case a crypto-custodian falls insolvent. In the process, the article analyses the legal qualities of bitcoin and the status of deposited bitcoins. It also discusses how private international law applies to insolvency proceedings against crypto-custodians.
In Charity and Law: Past, Present and Future, Matthew Harding focuses on the role of law in constituting ‘legal charity’ as a mode of social action. The article first explores how law has played a key role historically in defining a charity sector with its own distinctive character. It then unpacks how recent developments have put pressure on the existing doctrine. Lastly, it interrogates how law should respond to these recent developments, namely whether law should continue to constitute legal charity or whether other modes of social action should be favoured.
In Certain Drafting Mysteries Concerning the New Insolvency, Restructuring and Dissolution Act, Kiu Yan Yu identifies drafting issues that arise in the Insolvency, Restructuring and Dissolution Act 2018 due to the modification and transposition of old provisions to the new omnibus act. He also clarifies the meaning of the relevant provisions and reflects on how similar drafting issues can be avoided in the future.
In Open Banking and Libra: A New Frontier of Financial Inclusion for Payment Systems?, Andreas Kokkinis and Andrea Miglionico examine the new frontiers of open banking and cryptocurrencies for payment systems from the perspective of inclusive financial development. They argue that the main challenge for regulators involves developing the appropriate public policy on financial data and the availability of ‘open data’ for use by other firms and investors. They further posit that there is a public interest in data access which requires coordination at industry level and may also require regulatory intervention.
In COVID-19 in Singapore: ‘Responsive Communitarianism’ and the Legislative Approach to the “Most Serious Crisis” Since Independence, Darius Lee dissects the Singapore government’s approach to the COVID-19 pandemic—a ‘legislative model’ of emergency powers, which addresses COVID-19 through ordinary legislation, including and especially the COVID-19
(Temporary Measures) Act 2020. The article posits that Singapore’s response has been characterised by two main features: a legislative emergency in law and ‘responsive communitarianism’ in practice. It also argues that COVID-19 has seen the further concentration of executive power where the law is increasingly instrumentalised as a tool towards social and political priorities.
In Upholding Responsible Government: Legal and Political Controls on the Prorogation Power in Singapore, Seow Zhixiang posits that judicial control of the prorogation power in Singapore should be confined to enforcing the Constitutional provisions that directly or indirectly regulate the power. This is due to the existence of political controls, ie the reserve power of the President to dismiss a Prime Minister who does not command confidence.
In Mobile Intellectual Property and the Shift in International Tax Policy from Determining the Source of Income to Taxing Location-Specific Rents: Part One, Daniel Shaviro assesses the challenges that the rise of mobile intellectual property has posed for countries’ international tax systems,
viz. the traditional income tax concept of source and the OECD’s proposed focus on the site of “value creation”.
In All The World’s A Stage, But What is A Dramatic Work?, David Tan and Samuel Lim explore, through a comparative analysis of developments in a number of common law jurisdictions, what may and should qualify as a dramatic work in Singapore in the 21st century.
In The Tainting Doctrine in Singapore Conflict of Laws, Rennie Whang identifies that the mechanism of the tainting doctrine—as articulated in
Euro-Diam Ltd v Bathurst Ltd—is presently uncertain due to,
inter alia, its use of domestic illegality principles which no longer apply. Her article encompasses two areas of clarification. First, it explores whether the doctrine should be seen an application of the proper law of the contract or the law of the forum. Second, it introduces a new possible approach as informed by the test in tainting by domestic illegality.