Saturday, 12 June 2010

The curious case of the diners and the casino - Another letter writter's views.

This is the view of another letter writer to TODAY.

TODAY Online Only; Jun 10, 2010
Letter from Dudley Au

When diners had no intention to gamble

I refer to "The curious case of the diners and the casino" (June 10) which comprised three letters, and in particular to the one from Mr Tan Sin Liang, a compliance lawyer who wrote under the heading "Law should be clarified".

In it, Mr Tan said, based on the law, both the casino and the diners have technically breached Section 116 (5) of the Casino Act and the Schedule of The Casino Control (Entry Levy) Regulations 2010.

In theory, he said, the casino staff were right in asking the diners to pay the levy and, in continuity, from the action, infuriate the diners since the breakdown of the lifts. The alternate exit was impossible to access because of the lifts breakdown and the casino (another exit) had to be used through no fault of theirs.

The patrons of the restaurant were forced by circumstances beyond their control to use the casino exit. This in turn created the issue of the law not being specific in its provision of exceptions to its rule. Marina Bay Sands' administration should have used their common sense and not create this ridiculous issue which should never have occurred.

This is a reflection of the enigma of the fundamental law (Constitution) of the United States and the judges who enforce the law. Dworkin, Professor of Jurisprudence, Oxford and former Professor of Law at Yale, described this about the institution of judicial review of legislation as an institution as both the pride and the enigma of American jurisprudence.

He said, the puzzle lies in that everyone agrees that the Constitution forbids certain forms of legislation but neither the Supreme Court justices nor constitutional law experts, nor ordinary citizens can agree on what it does forbid because of the abstract language and absence of specific framing. Dworkin believed the dilemma could be bypassed by an apolitical programme for deciding constitutional cases.

Two ideas, he said, were prominent. One is the idea of constitutional intention, called the original intention of the "Framers" of the Constitution. The second relies not on the idea of an original intention but on a sharp distinction between matters of substance and matters of process. It involves not the reviewing of the fairness or justice of substantive decisions in the law but only of protecting the fairness of the process through which these statutes were made.

In any case, Dworkin asserts, judicial review only polices democracy, it does not seek to override political process as judicial review of substance does.

In the case of the predicament of the diners who had no choice but to leave the restaurant through the casino what was the intention of the framers of the law on the levy? If it was to gamble, there would be no justice in someone forced to leave through the gambling area (casino) through no fault of his.

It was the owner of the building's fault that the other avenue of exit was blocked (lifts not functioning). Judicial review of the circumstances in protecting the fairness or equity of the of the process should see the "intrusion"' of the diners into the casino was not of choice but of necessity.

Mr Denis Distant in his letter "Diners hard done by" asked if a fire broke out in the restaurant will the patrons have to pay the levy to escape via the casino? This shows the incongruity of the administration in enforcing the statute on the levy. It appears the hotel administration has no dialectic in enforcing the law. To the administration - if the law says this but circumstances say that it is the law that prevails.

May I ask the administration if someone faints or collapses on the grass in a park, where the law says do not walk on the grass under penalty of a fine, do you leave that person lying there because it is unlawful to walk on the grass? If a non- swimmer falls into a reservoir where there is a sign saying no swimming under penalty of being charged in court, do you leave that person to drown because the law prohibits swimming?

As Justice Holmes, speaking on the right to the freedom of speech, said, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic, in Schenck v. United states.

The most stringent law on a levy for gambling cannot be used to take money from the diners who did not gamble, had no intention to gamble and who were forced by circumstances beyond their control to leave by the casino entrance.

Reductio ad absurdum.

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