Singapore courts stick to rule of law: Chief Justice Sundaresh Menon

Singapore courts, unlike United States courts, are “leery” of going outside the text of the Singapore Constitution in declaring unspecified rights, as it is dissimilar to the US Constitution, which preserves rights not specified in text.

Chief Justice Sundaresh Menon, in some of the clearest remarks on how the courts here deal with constitutional challenges, has underscored why courts have turned down suits filed to assert such rights and held that the matter was for Parliament.

“The more the judiciary is resorted to for the resolution of matters of searing social controversy, the more the line between legal and political questions will be blurred and the more likely citizens will begin to see the courts as a forum for the continuation of politics by other means,” he told an audience in the US earlier this month.

Giving the annual Bernstein lecture in Comparative Law at Duke University’s law school titled Executive Power: Rethinking the Modalities of Control, the Chief Justice discussed judicial review in Singapore, which he described as the “sharp edge that keeps government action within the limits of the law”.

He said all legal power has legal limits, meaning that the constitutional role of the courts was simply to declare what the law is, and not what it ought to be.

This is unlike the US Constitution, where a “savings clause” preserves rights not specified in the document .

“By contrast, (the Singapore) Constitution does not have a savings clause that contemplates the possibility of unenumerated rights. It was for that reason that we have tended to be leery of going outside the confines of the text of the Constitution to find rights which petitioners have sought to assert,” he said.

The Chief Justice cited a 2015 case in which a plaintiff asserted caning was a form of torture prohibited by the Constitution, even though there is no explicit prohibition against torture as such.

BLURRED LINES

The more the judiciary is resorted to for the resolution of matters of searing social controversy, the more the line between legal and political questions will be blurred and the more likely citizens will begin to see the courts as a forum for the continuation of politics by other means.

CHIEF JUSTICE SUNDARESH MENON (photo), on constitutional challenges.

FOLLOWING THE LAW

I can think of a number of cases where I wished that the law was other than what I concluded that it was and that a different result could be reached, but whenever I catch myself thinking in this way, I remind myself that it is neither my role nor do I have the constitutional mandate to say what the law ought to be, only to say what it is.

CHIEF JUSTICE SUNDARESH MENON, on having to rule on cases within the law.

He said the Court of Appeal dismissed the case as the act complained about was not torture, but made clear that, even if it was, for the sake of argument, “where a right cannot be found in the Constitution (whether expressly or by necessary implication), the courts do not have the power to create such a right out of whole cloth simply because they consider it desirable”.

Stressing the difference between the rule of law and the rule of judges, he said reading unenumerated rights into the Constitution would entail judges “enacting their personal views of what is just and desirable into law, which is not only undemocratic but also antithetical to the rule of law”.

Chief Justice Menon said a restrained approach to the exercise of judicial power was mandated by the rule of law and the Constitution and pointed out that the courts are not well placed to address complicated policy issues and would remove these questions from the realm of democratic decision, with all its advantages, if they did so.

He said judicial review is most effective when the judiciary has secured the respect of the other branches through honest, competent and independent judgment that is respectful of the constitutional prerogatives of the other branches.

In such a climate, the executive will voluntarily review its policies and adjust its conduct in the light of the guidance given, even without the need for a formal challenge.

He noted that all countries have the difficult task of striking an appropriate balance between affording governments the ability to act swiftly and decisively in the public interest and providing for adequate safeguards against governmental excess.

There was no one correct model for all times and places, he argued.

“I can think of a number of cases where I wished that the law was other than what I concluded that it was and that a different result could be reached, but whenever I catch myself thinking in this way, I remind myself that it is neither my role nor do I have the constitutional mandate to say what the law ought to be, only to say what it is,” said Chief Justice Menon.

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European stocks hit two-week low as sell-off leaves few sectors unscathed

LONDON (Reuters) – European shares hit their lowest in two weeks on Wednesday in a broadbased sell-off across oil, mining, technology and banking stocks amid renewed worries about a global economic slowdown and Italy’s budget crisis deepens.

The pan-European STOXX 600 lost 0.6 percent after a choppy session as commodities sectors weighed and Italian stocks sold off.

The STOXX and leading euro zone stock indexes .STOX50E hit their lowest since Oct 31 in early deals, recovering some ground later and ending the day near those levels as Wall Street turned lower as Apple led another decline in technology stocks.

European tech stocks .SX8P were down 0.6 percent with chipmaker AMS (AMS.S) sinking another 10 percent to the bottom of the STOXX 600.

The shares have lost almost a third of their market cap so far this month amid concerns about a weak U.S. holiday sales season after warnings from Apple and Qualcomm.

Italy’s decision to stick to its growth and deficit plans in its re-submitted draft budget set the stage for a showdown with the European Union over breaking structural deficit limits.

It drove government bond yields up and sent Italy’s FTSE MIB .FTMIB down 0.8 percent as bank stocks .FTIT8300 fell 1.4 percent.

“Continued pressure on Italian government bonds could spark a major debt crisis, which could easily spread across the region,” said David Madden, market analyst at CMC Markets UK.

“The clock is ticking for Theresa May, as she needs to convince her cabinet, and then the majority of the House of Commons to back her draft agreement regarding the UK withdrawal from the EU.”

The oil and gas sector .SXEP fell 0.5 percent, paring earlier heavier losses as oil prices managed to recoup some of the ground lost following a 7-percent plunge the previous day on surging supply. [O/R] Still, the sector ceded its position as top-gaining sector year-to-date to healthcare.

Energy stocks have been one of the biggest contributors to the region’s earnings growth this quarter, making the slide a significant concern for investors.

In London, the FTSE 100 .FTSE fell as Prime Minister Theresa May sought to convince her government to accept a draft European Union divorce deal that opponents say threatens the independence and unity of the United Kingdom.

Mining stocks .SXPP fell 2.9 percent as copper prices slid after weak China retail sales data reignited fears of a slowdown in the world’s biggest metals consumer.

Dutch payments firm Adyen’s (ADYEN.AS) shares lost 9.5 percent as traders said the stock had been left out of an MSCI index re-weighting, and was also being dragged down by Wirecard (WDIG.DE) which fell after results.

“Adyen didn’t get included into the MSCI re-weights, which a lot of people were thinking they might, so there’s some technical selling driving it,” said Mark Taylor, sales trader at the Mirabaud Securities Global Thematic Group.

Wirecard shares fell to the bottom of the DAX after the firm hiked its profit target and reported a jump in third-quarter net earnings. Traders said the market was honing in on details in its free cash flow, and signs of slowing inorganic growth.

Iliad (ILD.PA) shares were among top gainers, up 9.6 percent after results showed good performance in the company’s Italian unit, though overall it lost subscribers.

Gambling company GVC (GVC.L) shares hit the jackpot after a UK government ruling aimed at tackling problem spared the company a major cash outlay to former Ladbrokes shareholders.

Overall European earnings have been underwhelming this season, revealing growing margin pressure and concerns about growth and a slowdown in China.

“For 2019, we forecast low-single-digit and below-consensus EPS growth in Europe,” wrote Barclays analysts.

They see earnings per share growing at 4 percent in the euro zone and 2 percent in the UK next year – significantly lower than the aggregate IBES Refinitiv estimates for around 10 and 8 percent respectively.

Mediaset (MS.MI) shares fell 6.9 percent, the heaviest fallers on the Italian index, after third-quarter earnings delivered a small beat, but Deutsche Bank analysts said consensus estimates were more likely to fall than rise.

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Philippine President Duterte skips some summit meetings but is in 'top shape'

SINGAPORE (REUTERS) – Philippine President Rodrigo Duterte skipped several meetings at the Asean summit in Singapore on Wednesday (Nov 14), prompting the 73-year-old’s office to issue a statement scotching speculation that it was due to ill health.

“We assure the nation that his aforementioned absence has nothing to do with his physical health and well-being which have been the subject of speculation,” spokesman Salvador Panelo said in a statement.

“The president’s constantly punishing work schedule is proof that he is in top physical shape.”

Mr Panelo named four scheduled events that Mr Duterte had not attended on Wednesday, during which the President “took power naps” to catch up on sleep, and said he would also skip a gala dinner with the leaders of nine South-east Asian nations, US Vice President Mike Pence and several others.

Mr Duterte’s health has been a constant source of speculation since he disappeared from public view for a week last year, and he has said openly that he is tired and would like to step down before the end of his term ends in 2022.

Last month, Mr Duterte’s office revealed that he had undergone a colonoscopy and he told reporters that a biopsy had shown he did not have cancer.

The Constitution provides for the public to be told of the state of health of an incumbent president, if serious.

If a sitting president dies, is permanently disabled or removed through impeachment, the vice-president succeeds to serve the remaining years in a six-year, single term.

Vice-President Leni Robredo, a leader of the opposition, was elected separately in 2016. Speculation about Mr Duterte’s health last month prompted concern that the Philippines could be headed for uncertainty given the highly polarised political climate.

Mr Duterte has cited Ms Robredo’s “incompetence” as a reason for his inability to quit as president.

Mr Duterte has a record of skipping summit sessions, though he did not miss any as host when the Philippines held the chair of Asean last year.

Mr Panelo said it was “amusing that some quarters are making a big fuss” of Mr Duterte’s absences, noting that he had attended Asean meetings with leaders from China, Japan and Russia.

“Last night, the President worked late and had only less than three hours of sleep,” he said. “It is unfortunate that the first event scheduled today was at 8.30am”.

Mr Duterte is known for having an unorthodox working schedule that typically starts in mid-afternoon and includes Cabinet meetings that can go on beyond midnight.

Go to our Asean microsite for more stories and commentaries

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Woman survives fall into sinkhole in China

A woman survived a fall into a sinkhole that suddenly opened up in a pavement in Lanzhou, China.

The sinkhole was about 3m wide and more than 3m deep, and the woman was trapped inside with half her body submerged in mud, according to Chinese news website Xin Jing Bao Wang.

Footage of the incident, that occurred at 5.47pm on Sunday (Nov 11), was recorded by a security camera and has been making the rounds online. A Facebook post by Chinese state broadcaster CGTN with the video has garnered 1.2 million views as of Wednesday evening.

In the video, a bystander rushed forward to help the woman but stopped himself out of fear that the ground around the sinkhole would continue to crumble.

The woman was eventually rescued from the pit with a rope and the help of passers-by. She was taken to the hospital and found to have two fractured ribs but her condition was stable.

A witness told Xin Jing Bao Wang that she saw a passer-by on a motorcycle throw his helmet down for the trapped woman to wear for protection.

Lanzhou Traffic Police Command Centre posted on Weibo notifying users of the sinkhole and that the relevant authorities were rushing to deal with it. They also warned people against going to the sinkhole to look at it.

This is not the first time a sinkhole has appeared in Lanzhou, according to Wenxue City News. The city had three other sinkholes in September, with one pedestrian fatality.

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Indonesia lauds substantial progress of RCEP

SINGAPORE – Indonesia, the Asean coordinator for what would be the world’s largest free trade pact, lauded the “substantial progress” in the negotiations which saw leaders agree to complete the deal next year.

President Joko Widodo “had stressed the importance of a mandate” to agree the Regional Comprehensive Economic Partnership (RCEP) and the progress so far has been good, the country’s Foreign Minister Retno Marsudi said on the sidelines of the Asean Summit at Suntec Singapore International Convention and Exhibition Centre yesterday.

“We are at the point of no return. We will build on assets and existing achievements to continue the negotiations,” she said, quoting the president. “All the leaders have given their strong commitment to conclude the negotiations next year.”

Mr Joko has outlined four conditions he felt members should keep in mind as they strive to complete the pact next year: flexibility to achieve an agreement, recalibration of ambitions towards a common interest, discipline in the discussion of targets as well as concrete cooperation and a constructive attitude.

The progress of the Asean-led pact, which covers nearly half the world’s population, has been in the spotlight amid ongoing trade tensions between China and the US. Asean countries support for the deal, saying it will open global trade and investments.

Malaysian Prime Minister Mahathir Mohamad has said its completion would validate Asean’s role in economic integration of this region, but noted that some Asean countries would require assistance in meeting market aspirations of developed economies.

“What we require is fair and mutually beneficial trade and investment cooperation rather than the dominance by anyone,” Tun Dr Mahathir said in a keynote speech at the Asean Business and Investment Summit held at the Marina Bay Sands convention centre on Tuesday.

His Foreign Minister Saifuddin Abdullah, who presented the argument on his behalf, said part of Dr Mahathir’s intervention at the summit was to highlight that Malaysia’s move to remove trade barriers had gone unreciprocated, the Malay Mail reported.

“While countries like Malaysia are expected to eliminate or reduce our tariffs to provide greater market access to others, this is not reciprocated by some advanced countries in the current negotiations,” he tweeted on Wednesday.

Go to our Asean microsite for more stories and commentaries

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Global regulators hold off designating 'too big to fail' insurers

LONDON (Reuters) – Global insurance regulators will suspend designating globally systemically important insurers, who are required to hold extra capital, in a victory for companies such as American International Group (AIG.N) and Prudential (PRU.L).

The International Association of Insurance Supervisors (IAIS) said it wants to replace the list of “too big to fail” insurers, last published in 2016, with a broader framework from 2020.

In the aftermath of the global financial crisis, regulators singled out systemically important insurers who then face onerous bank-like capital rules to cover potential losses, increasing costs and potentially reducing shareholder returns.

The industry has long argued it played no major role in the financial crisis and should not be treated in the same way as global banks, who must also hold extra capital.

Nine insurers featured on the list published in 2016: Aegon (AEGN.AS), Allianz (ALVG.DE), American International Group, Aviva (AV.L), Axa (AXAF.PA), MetLife (MET.N), Ping An Insurance (2318.HK) Company of China, Prudential Financial Inc (PRU.N), and Prudential in Britain.

It was not updated in 2017, and won’t be in 2018 either.

The IAIS said it was moving away from a “binary” approach of imposing extra measures on a small group of insurers to a “proportionate” application of measures targeted at the activities of insurers that lead to systemic risk.

It has proposed a new framework to come into effect in 2020, after which a decision would be made on whether the scrap the list altogether.

The industry has lobbied that regulators should focus on activities rather than issuing extra capital requirements simply because of a company’s size.

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Legal Aid Bureau revamps website to offer quicker help to poor

SINGAPORE – Poor people in need of legal aid may soon get help more quickly.

From next year, the Legal Aid Bureau, which provides legal assistance to low-income Singaporeans for civil proceedings, will implement a new system that aims to assign lawyers to the needy faster.

Assigned solicitors, who are private sector lawyers registered with the bureau, will be able to browse and select the relevant cases they wish to work on via its revamped website.

Currently the site offers cases to individual lawyers who then decide whether to take them up.

The new system will be implemented in phases and is similar to “an online shopping platform”, Legal Aid’s director Ms Lim Hui Min said on Wednesday ( Nov 14).

“We will be able to match suitable assigned solicitors to cases much faster, and assigned solicitors can do what best suits their interests and schedules.”

She was speaking at the Legal Aid Bureau’s 60th anniversary dinner in Singapore Marriott Tang Plaza Hotel.

The portal will also be upgraded for applicants so that they can check the status of their applications.

It currently allows applicants to register online and submit electronic documents but will also have new features such as an online means testing function.

Lawyer Seenivasan Lalita, who was at the event, said the new system of assigning cases would allow lawyers more choice.

“It gives us the opportunity to consider everything, before we actually confirm and accept the matter,” said Madam Lalita, who is in her early 60s.

Since it started in 1958, the bureau – which is a department under the Ministry of Law- has received more than 400,000 applications.

Last year, about 9,000 applied for help, of whom around 90 percent partially qualified for it by passing the preliminary means test, announced Minister in the Prime Minister’s Office, Ms Indranee Rajah, who was also at the event. Applicants must also pass a merits test to prove that they can bring or defend their case under the law, to qualify for the aid.

The bureau’s good work over the last 60 years was made possible because of the dedication of all its staff, lawyers, volunteers and partners, she noted.

One such individual is Mr Ramasamy Palanisamy, 77, who has been with the bureau for 55 years. The litigation clerk still works for its support staff.

“Throughout the years I realised how fortunate I am, to get to serve people who are poor and helpless,” said Mr Ramasamy. “Because the job has meaning, as long as they want me, I will continue to serve.”

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Spirit of unity as Asean leaders gather

A leap of faith brought five South-east Asian nations together decades ago, giving rise to an unlikely brotherhood in a region rocked by hostilities and strife.

Yesterday, 51 years on, hard-won camaraderie united the leaders of Asean, now a 10-member grouping that has left its mark on the world stage.

Good cheer filled the air as the leaders filed into the Suntec convention centre, after motorcades whisked them through the bustling heart of downtown Singapore.

There, past security checkpoints that had turned the venue for the 33rd Asean Summit into an object of curiosity for tourists and shoppers at nearby malls, waited Prime Minister Lee Hsien Loong. He had handshakes and exuberant greetings for his fellow leaders – many of them now familiar friends.

There was a booming “Your Majesty” for Brunei’s Sultan Hassanal Bolkiah, a 30-year veteran of Asean summits.

For Malaysian Prime Minister Mahathir Mohamad – the sole survivor of the old guard of formidable South-east Asian leaders that included PM Lee’s father, Singapore’s founding PM Lee Kuan Yew – a warm clasp of the hand and respectful nod.

Mrs Lee darted forward, moving away from her husband’s side, where she had been greeting the spouses of Asean leaders with cheek kisses, to take the hand of Tun Dr Mahathir’s wife.

She would accompany Tun Dr Siti Hasmah Mohamad Ali – who had been with Dr Mahathir yesterday on his whirlwind schedule of commitments – out of the greeting area, hand in hand, heads bent in conversation, before resuming her post.

Asean’s leaders are in town for a marathon series of meetings that marks the final milestone of Singapore’s one-year chairmanship of the regional grouping.

It will be a time to take stock of Asean’s achievements – and discuss how to take the group forward at a time of global upheaval. There was no glitz or glamour, no chandeliers or gold trimming – but as its leaders came face to face once more in a modest convention hall for the summit’s opening ceremony, an air of celebration prevailed.

Indonesian President Joko Widodo sang along to a Singapore vocal group’s rendition of Secret Garden’s You Raised Me Up.

The Asean spirit of regional cooperation and friendship was celebrated, with Ms Erlinda Uy Koe, the chair emeritus of Autism Society Philippines, honoured with the inaugural Asean Prize to recognise an individual or organisation that has promoted intra-Asean collaboration.

PM Lee had, at a meeting of Asean foreign ministers in August, noted the grouping’s five founding members took a leap of faith in 1967 when they decided to band together, setting aside “old suspicions and rivalries”.

But divides still remain.

Just before the reunion yesterday, Dr Mahathir had told reporters he was disappointed with Myanmar’s handling of the Rohingya crisis in Rakhine State. But at the ceremony – as he sat with Myanmar’s de facto leader Aung San Suu Kyi to his right, in keeping with the alphabetical order that determines seating – the grouping presented a united, unruffled front.

It was a showcase of Asean’s conviction that the grouping is greater than the sum of its parts.

“Each member state has its own strategic outlook, political calculations and national interests. Despite this, Asean has shown that it is still able to work together and find common ground,” PM Lee said.

“By coming together in one collective voice, instead of going our separate ways as 10 disparate countries, Asean members have strengthened our standing in the world.”

Go to our Asean microsite for more stories and commentaries

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U.S. annuities sales boom after fiduciary rule kicks the bucket

(Reuters) – U.S. annuities sales are booming months after the demise of a regulation that targeted the product, which had required that brokers put customers’ interests ahead of their own compensation.

Several U.S. insurers reported surging annuities sales when outlining third-quarter results in recent weeks. American International Group Inc’s (AIG.N) individual retirement business posted $3.6 billion in annuities sales, a 65 percent jump from the year-ago period. Lincoln National Corp (LNC.N) and Brighthouse Financial Inc (BHF.O) detailed gains of 61 percent and 43 percent, respectively.

The companies can thank the end of a Department of Labor regulation known as the fiduciary rule. Announced during the Obama administration, the rule required brokers to act in clients’ “best interest” when offering retirement advice, and inform them about commissions and other incentives they received for selling products like annuities.

Total annuity sales were $59.5 billion during the quarter ending April 30, according to Limra Secure Retirement Institute. Sales had not been as high since early 2015, just before the rule was being put in place.

But the rule effectively died in June, when the Trump administration declined to pursue a U.S. Supreme Court appeal that might have kept it alive. While the U.S. Securities and Exchange Commission and state regulators are working on their own versions, consumer advocates say they do not expect investors to be as protected, particularly when high-fee annuities are involved.

“It still permits egregious products and egregious sales,” said Barbara Roper, director of investor protection at the Consumer Federation of America, about the most recent draft of a National Association of Insurance Commissioners (NAIC) proposal.

In the most basic annuity, a customer gives a lump sum of cash to an insurer and receives a payment each month over a set number of years, sometimes for life.

Consumers can benefit from that kind of steady income during retirement, but problems often arise with complex products, like fixed-indexed or variable annuities, Roper said. Investors often do not understand the risks and costs, which can be hidden in the fine print, she said.

Fees for complicated annuities can be 4-9 percent of the principal, industry sources said.

The SEC is working on an investor protection rule it calls “Regulation Best Interest,” while the NAIC plans to meet on Thursday in San Francisco to smooth out differences among state regulators for a proposed model rule that other states could later choose to adopt.

New York moved ahead of other states in June by issuing a regulation that requires insurance agents and brokers to act in consumers’ best interest when selling annuities and life insurance. Although the New York State Department of Financial Services wants others to adopt the rule, which becomes effective in August 2019, the NAIC opposed some of the language.

Iowa Insurance Commissioner Doug Ommen expressed concern about using the term “best interest” because it could trigger litigation against insurers and agents, according to minutes of an August meeting.

The NAIC’s most recent draft of the rule would require insurers and agents to “act in the interests of the consumer” without placing their own financial interests first. It would not require them to recommend the best-priced products.

Birny Birnbaum, executive director of the Center of Economic Justice, said the draft does not go far enough. “There is nothing in the proposal that forces the consumers’ interest ahead of the insurers’ interest,” he said.

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China's top pig farming firm to follow new lower protein feed standards

GUANGZHOU, China (Reuters) – China’s top pig farming company Wens Foodstuffs Group Co Ltd (300498.SZ) will comply with new government-backed guidelines on lower protein in animal feed, a company executive said, adding however that the impact on its operations would be minimal.

China’s Feed Industry Association last month approved new standards for pig and chicken feeds, with lower protein levels as Beijing seeks to reduce its consumption of soymeal amid an ongoing trade spat with major soybean supplier the United States.

Wens has pledged to follow the guidelines, Yang Junpeng, deputy general manager of purchasing told an industry event on Wednesday. But he said it would have only a small impact on the company as its formulas are already very close to the new rules.

The rules have no impact on its poultry feed, and will only require a change to feed for pigs above 75 kilograms, said Yang.

“In recent years we’ve been continually optimizing our formulations,” he said.

Wens Foodstuff is China’s top producer of pigs, slaughtering more than 10 million pigs in the first half of the year, and 330 million chickens.

Outbreaks of African swine fever are currently restricting farmers’ ability to replenish their herds.

The highly contagious disease has been reported in 17 provinces across China, including its major pig producing regions, forcing Beijing to roll out restrictions on the transport of live pigs across the country.

“Next year pig prices in the second half will be comparatively positive, though we still need to see how African swine fever evolves and the ongoing impact from environmental policies,” he said.

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