Guest Legal Certainty Posted September 22, 2014 Posted September 22, 2014 Yes, although there is a public interest proviso, ur reading of the implications of the case is wrong. There are several requirements for SLE to be engaged but most importantly there must be rep and det reliance. This is why i used the term "primarily". The public interest proviso is stated in the judgement at [117](f) (iii) - "The court should nevertheless not grant relief if " "The public authority can show an overriding national or public interest which justifies the frustration of the applicant’s expectation". the court inevitably has to put in this proviso to prevent a SLE from inhibiting essential and necessary policy decision. The crucial question is the scope of the proviso - i.e. when is an overriding national or public interest engaged. And the cases which are cited (patel, lever (finance), and mount sinai) all suggest that the overriding public interest must meet a high threshold. arguably, when reliance is made and the consequence is the commission of an offence, there would be a need for greater countervailing public interest. What could be greater countervailing public interest than the fact that we are told that 377a remains on the books because of significant public support? Following from this, then SLE would fail as a viable defense for offences under 377a since significant public interest supports the retaining of 377a as a criminal offence as did SLE fail in Chiu Teng because of overriding public interest. If 377a did not have significant public support, then why not repeal it? The crux of the matter is that what constitutes public good is not static and may be determined by different public authorities to be different things at different times. This discretion supported by the court in the decision you cited, enables public interest to trump the legal certainty SLE is supposed to provide. The maintenance of 377a on the books while making pronouncements that it will not be proactively enforced is a shrewd political device to mollify both sides of the divide. If a case under 377a comes to court because of overriding public interest would SLE as a defense succeed? Unlikely since there is significant countervailing public interest involved that considers such acts criminal and morally abhorrent. It is this ambiguity created by the divergence of discretionary public policy from proactively enforcing 377a while still maintaining it on the books because of significant public support / interest that WW is concerned with since it impacts legal certainty. His suggested solution to resolve this in favour of legal certainty is by repealing 377a.
Foo Desmond Posted September 23, 2014 Posted September 23, 2014 er the test is public interest not public support. and the public interest/"good" (in ur terms) is objectively determined by the court not some subjective determination by the public authority. SLE is a credible defence and is not as flimsy as u make it out to be. finally, there is a great political cost to repeal, surely u must recognise that.
Guest Guest Posted September 23, 2014 Posted September 23, 2014 er the test is public interest not public support. and the public interest/"good" (in ur terms) is objectively determined by the court not some subjective determination by the public authority. SLE is a credible defence and is not as flimsy as u make it out to be. finally, there is a great political cost to repeal, surely u must recognise that.Care to share how was it being 'objectively determined by the court' wrt to the 377a repeal?Great political cost to the government in the expense of the minority of its people..right
Guest Guest Posted September 23, 2014 Posted September 23, 2014 er the test is public interest not public support. and the public interest/"good" (in ur terms) is objectively determined by the court not some subjective determination by the public authority. SLE is a credible defence and is not as flimsy as u make it out to be. finally, there is a great political cost to repeal, surely u must recognise that.In trying to sound politically correct, you have become not very objective...
Foo Desmond Posted September 23, 2014 Posted September 23, 2014 (edited) wait guests i don't think u guys get the point. I'm saying even if there is no repeal, there is the doctrine of substantive legitimate expectation which acts as a defence against enforcement of 377A. "legal certainty" claims SLE cannot be relied upon because there is a public interest exception to SLE and this exception is engaged and can defeat SLE on the sole basis that the public authority subjectively determines there is a public interest to override the SLE. In contrast, I am saying the determination as to whether there is sufficient public interest to override the SLE is to be objectively determined by the court. I am not talking about the "objective determination of the repeal", as what one of the guest seems to claim. Edited September 23, 2014 by Foo Desmond
Guest Legal Certainty Posted September 23, 2014 Posted September 23, 2014 wait guests i don't think u guys get the point. I'm saying even if there is no repeal, there is the doctrine of substantive legitimate expectation which acts as a defence against enforcement of 377A. "legal certainty" claims SLE cannot be relied upon because there is a public interest exception to SLE and this exception is engaged and can defeat SLE on the sole basis that the public authority subjectively determines there is a public interest to override the SLE. In contrast, I am saying the determination as to whether there is sufficient public interest to override the SLE is to be objectively determined by the court. I am not talking about the "objective determination of the repeal", as what one of the guest seems to claim.The crux of the matter is what is the basis for the doctrine of SLE as a defense against 377a? In your arguments you stated that arising from Chiu Teng v SLA, the doctrine of SLE applied in Singapore. You went on to add that the basis for SLE to be engaged was primarily public authority representations / pronouncements detrimentally relied upon whose consequence is the commission of an offence. In Chiu Teng, their SLE defense failed despite their detrimental reliance on the public authority's published Table of DP Values because the Chief Valuer (a public authority) decided that it was in the public interest to use spot valuation not based on the published Table of DP Values. How was sufficient public interest to override SLE objectively determined by the court? Instead the court pronounced that discretion in public policy must trump SLE to ensure that public policy decisions be unfettered. Despite this, you now argue that the court must objectively determine if there is sufficient public interest to override SLE for 377a. How can there not be sufficient public interest if 377a remains on the books? Hence your argument that SLE defense would be viable in 377a situations is akin to a foreign woman caught soliciting in the red light district and subsequently charged, claiming SLE was engaged because police do not proactively conduct anti-vice operations in red light districts that is why she was soliciting there. Would the judge then objectively determine that there was insufficient public interest to override SLE and acquit her of the crime of solicitation? Unlikely "to prevent SLE from inhibiting necessary and essential policy decision". (again your words) The fact that she was charged for a crime cannot be so easily dismissed. Public authorities can and do make discretionary decisions. In the case of Chiu Teng v SLA (which you introduced) The Table of Values was not for use by certain landowners only but meant to aid transparency in determining DP. And yet when the Chief Valuer decided to use spot valuation not based on the Table of Values instead, that decision was accepted by the court as part of public policy discretion. If public policy discretion can so easily trump SLE in Singapore, how effective is an SLE defense against 377a really?
Foo Desmond Posted September 24, 2014 Posted September 24, 2014 (edited) The crux of the matter is what is the basis for the doctrine of SLE as a defense against 377a? In your arguments you stated that arising from Chiu Teng v SLA, the doctrine of SLE applied in Singapore. You went on to add that the basis for SLE to be engaged was primarily public authority representations / pronouncements detrimentally relied upon whose consequence is the commission of an offence. In Chiu Teng, their SLE defense failed despite their detrimental reliance on the public authority's published Table of DP Values because the Chief Valuer (a public authority) decided that it was in the public interest to use spot valuation not based on the published Table of DP Values. How was sufficient public interest to override SLE objectively determined by the court? Instead the court pronounced that discretion in public policy must trump SLE to ensure that public policy decisions be unfettered. Despite this, you now argue that the court must objectively determine if there is sufficient public interest to override SLE for 377a. How can there not be sufficient public interest if 377a remains on the books? Hence your argument that SLE defense would be viable in 377a situations is akin to a foreign woman caught soliciting in the red light district and subsequently charged, claiming SLE was engaged because police do not proactively conduct anti-vice operations in red light districts that is why she was soliciting there. Would the judge then objectively determine that there was insufficient public interest to override SLE and acquit her of the crime of solicitation? Unlikely "to prevent SLE from inhibiting necessary and essential policy decision". (again your words) The fact that she was charged for a crime cannot be so easily dismissed. Public authorities can and do make discretionary decisions. In the case of Chiu Teng v SLA (which you introduced) The Table of Values was not for use by certain landowners only but meant to aid transparency in determining DP. And yet when the Chief Valuer decided to use spot valuation not based on the Table of Values instead, that decision was accepted by the court as part of public policy discretion. If public policy discretion can so easily trump SLE in Singapore, how effective is an SLE defense against 377a really?huhh i don't get ur prostituion eg. because clearly SLE cannot be raised in the case because there was no unequivocal representation from the police they would not enforce the law. unequivocal representation is required. I don't want to go into details but the public interest identified in Chiu Teng was that the SLA had a statutory duty to maximise land use potential and this included maximising returns to the government from land sales. thus there was a very specific public interest identified. and the court found objectively this was sufficient to override one commercial developer expectation of commercial gain. as i pointed out earlier when the reliance leads to the commission of a crime, conceivably, the competing public interest (which also has to be specified) must be stronger. Finally, the decision in Chiu Teng was also a cumulation of the failure by Chiu Teng to meet the other requirements as well. There was no unqualified representation (the website where the relied upon computation was published had a disclaimer), it was unreasonable for the commercial developer to rely on the representation (because of the press releases sent out and widespread publicity that capitaland also had a plot of land with the same clause in the land sales contract that made it unique and it was valued by the method chiu teng is now objecting against). Edited September 24, 2014 by Foo Desmond
Guest Legal Certainty Posted September 24, 2014 Posted September 24, 2014 huhh i don't get ur prostituion eg. because clearly SLE cannot be raised in the case because there was no unequivocal representation from the police they would not enforce the law. unequivocal representation is required. I don't want to go into details but the public interest identified in Chiu Teng was that the SLA had a statutory duty to maximise land use potential and this included maximising returns to the government from land sales. thus there was a very specific public interest identified. and the court found objectively this was sufficient to override one commercial developer expectation of commercial gain. as i pointed out earlier when the reliance leads to the commission of a crime, conceivably, the competing public interest (which also has to be specified) must be stronger. Finally, the decision in Chiu Teng was also a cumulation of the failure by Chiu Teng to meet the other requirements as well. There was no unqualified representation (the website where the relied upon computation was published had a disclaimer), it was unreasonable for the commercial developer to rely on the representation (because of the press releases sent out and widespread publicity that capitaland also had a plot of land with the same clause in the land sales contract that made it unique and it was valued by the method chiu teng is now objecting against). Why set up DP Tables if spot valuation would maximise land sale returns? Does this not then lead to ambiguity in public policy - sometimes DP Value Tables other times spot valuation? Where's the legal certainty? As for disclaimers, here's a 377a disclaimer for you - its still a crime since it hasn't been repealed! As for unequivocal representation, the pronouncement was that 377a would not be proactively enforced, not that it would absolutely not be enforced. How unequivocal is that since it could be incidentally enforced (as in the e.g. of solicitation and not prostitution that I cited) or consequentially enforced when judicial notice was involved? I know that there is a lot of excitement in the prospect of SLE defense succeeding in Singapore but I argue that SLE is more likely to be upheld in procedural challenges (where due process is not discretionary) rather that policy challenges since the courts have shown a reluctance to inhibit discretion in public policy matters.
Guest Guest Posted September 24, 2014 Posted September 24, 2014 Aiyo just one day how detrimental it can be to ones health.If ' everyone is equal before the law' is a principle he is trying to uphold, kudos to him! Has the law been always compassionate to the weak and poor, those who are disadvantaged, or marginalized in the society?2 wrong doesn't make 1 right. Teehee
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