Legal History of SG

Question 1

Common Law Tradition

Answer 1

[Common law and statutory law make up SG’s legal system.]

English law was adapted to suit local conditions and unique needs of former British colonies.

Statutory laws supplement the common law.

• Judges cannot modify such laws and must apply them per legislative intent.
• However, courts have a certain degree of latitude in discerning Parliament’s intention.

Question 2

The Executive

Answer 2

Consists of President, Cabinet and Attorney-General.

CABINET (PM and Ministers appointed from Members of Parliament):
1. Responsible for general direction and control of Govt + drafting of Bills.
- PM has power to advise President on the appts of CJ, Judges, Judicial commissioners of the Supreme Court, and AG
- President can refuse such appts, PM alone has the power to suggest individuals for appt
• Appt of key officeholders is decided first by the PM - subj to the P’s power of refusal - subj to the council of Presidential Advisers’ rec and 2/3 maj of Parliament

AG:
1. Principal legal advisor to Govt, may influence drafting of Bills and other written laws.

2. Article 35(8) Constitution: AG has sole discretion to institute, conduct or discontinue any proceedings for any offence.

Question 3

The Legislature

Answer 3

Consists of President and Parliament.

1. Responsible for enacting statutes

Parliament:
1. Consists of elected MPs and non-elected NMPs (with restricted voting rights).

2. Bills go through 3 readings before receiving P’s assent and becoming law.

Question 4

The Judiciary

Answer 4

Headed by CJ - consists of a 2 tier court system:

Tier 1: State courts (i.e. district courts, magistrates’ courts, various specialised courts such as the Small Claims Tribunal).

1. Responsible for more than 95% of cases.
2. Authority limited to prescribed monetary amounts or criminal sanctions specified in written laws.

Tier 2: Supreme Court (CA and High Court).

1. CA: highest court and its decisions are not subject to further appeal.
2. Courts administer justice through the interpretation and application of laws passed by Parliament and make common law on the basis of cases before them.
3. Members of the Judiciary, through the SAL, engage in the governance and reform of the SLS.
   i. e. CJ appoints Senior Counsel from outstanding lawyers in Singapore.

Question 5

Sources of SG Law:

Periods of reception of English law into SG?

Answer 5

(i) Pre-Application of the English Law Act (AELA):
- Reception of English legislation into Singapore by 3 means:
1. General reception
2. Specific reception
3. Imperial legislation

• English common law was received by way of historical/general reception through the 2nd Charter of Justice 1826.
  R v Williams: English law was to be applied to Straits Settlements, subject to modifications to suit the circumstances of the place and the customs, religions, usages and manners of the native inhabitants.

(ii) Post AELA:
- S 3 AELA: Common law of England, so far as it was part of SG law immediately before the commencement of AELA, shall continue to be SG law, subject to modifications as applicable to the circumstances of SG and its inhabitants.
- SG Courts retained residual power to depart from English law if local conditions required it.
- Encouraged development of independent SLS.

Question 6

The British Years (from 1819; 1823 Raffles’ Code):

How was the introduction of various aspects of British legal system?

Answer 6

Slow and disorganised: sense of reactionary pragmatism in how structural and institutional aspects were extended into Singapore.

Question 7

The British Years (from 1819; 1823 Raffles’ Code):

Pragmatism without authority

Answer 7

1. 1823 Code of local laws and regulations first formulated by Raffles, passed ultra vires. (Raffles did not have authority to pass such a code)
2. Passing of Code was driven by pragmatic acknowledgement that general rules and regulations were necessary for order and good governance of SG.
3. Introduced 2 aspects of the British legal system into Singapore:
   a. Procedure for the passage of laws; and
   b. Established courts in SG modelled after the British system.
4. Anglo-Dutch Treaty of 1824 (which recognised British occupation of SG): Crawfurd tasked to rectify all constitutional deficiencies. Permanent provisions for admin of justice in SG could not be made until British Parliament ratified the possession of SG.
5. Crawfurd’s actions were as illegal as Raffles’ Code and was a 2nd instance of British reactionary pragmatism to the realisation that SG needed a court system.

Question 8

The British Years (from 1819; 1823 Raffles’ Code):

Formalism without substantive effect (2nd Charter)

Answer 8

Formal instruments achieved little substantive effect given the lack of control and resources in reality.

1. 2nd Charter of Justice 1826: Ended Crawfurd’s provisional measures; established Court of Judicature of Prince of Wales’ Island, SG, Malacca to admin civ and crim justice.
2. Due to disputes on the ground with the Recorders, control was transferred to the Bengal Presidency, which complicated the operation of the 2nd Charter.
3. This exposed difficulty of governing from afar and how such governance depended greatly on the extent to which the individual in charge was willing to adopt pragmatic measures.
4. Fullerton: Adopted formalistic reading instead of pragmatic one, and closed the courts pending the grant of another charter, which created legal chaos in SG until 1832.
5. Strict adherence to formalism was addressed by the reinstatement of the offices of Governor and Resident Councillors, which allowed a new Court of Judicature to reopen in Penang.
6. However, addressing concerns of formalism did not resolve substantive problems:
   a. No attempt to promulgate local regulations: only source of legislative power over SG was the Governor-General of IN in Council.
   b. Dissatisfaction with judicial setup due to concentration of judicial and exec power in Governor’s hands (i.e. Governor could overrule the Recorder’s legal judgments).
   c. Severe lack of judicial resources as there was only one Recorder in Singapore and Malacca.

Question 9

The British Years (from 1819; 1823 Raffles’ Code):

3rd Charter of Justice (1855)

Answer 9

Meant to resolve these problems, but did not increase the judicial resources available. Created the office of a 2nd Recorder in SG and thus cut judicial officers’ salaries in half.

Damaged the morale and productivity of the judicial establishment.

Question 10

The British Years (from 1819; 1823 Raffles’ Code):

Substantive changes in response to SG’s commercial importance

Answer 10

1. Recognising SG’s commercial importance, the Straits Settlements were transferred to Colonial Office in 1867. Resolved outstanding problems and consolidated both legislative and judicial authority in SG.
2. Transformations in SLS:
   a. Legislative Council:
   - Governor, CJ, AG: Power to establish laws, ordinances, institutions and courts.

b. Executive council: Empowered Governor to appoint judges.

c. Judicial authority in courts (predecessor of today’s).
- Recorder of SG became CJ of Straits Settlements via the Straits Settlements Act.
- Clear div b/w exec, legis and judi authority.

3. AG and Solicitor-General appointed to remodel the court system: Laid groundwork for further refinement and consolidation.
   a. Straits Settlements Court’s Ordinance 1873: Restructured courts’ jurisdiction and further refined and consolidated the court system.
   - Gave power to Supreme Court to sit as CA.
   - Restructured Singapore courts by spelling out civil and criminal jurisdiction of the courts.

b. Straits Settlements Courts Ordinance 1907: Divided Straits Settlement’s SC’s jurisdiction into general, original, appellate civ and crim jurisdictions.
c. Court of Criminal Appeal Ordinance 1931: Created Court of Criminal Appeal.

5. After Jap Occ, substantive changes continued, although now carried out against the backdrop of a growing movement towards independence.
   - 1963: Singapore had HC, CA, and court of Criminal Appeal.

Question 11

The British Years (from 1819; 1823 Raffles’ Code):

Overview

Answer 11

Structural and institutional elements established through a process that began with:
a. reactionary pragmatism, followed by

b. adherence to formalism without substantive effects, and finally with
c. substantive changes occasioned by SG’s rise as an important commercial asset to the British.

Question 12

The Post-Independent Years (from 9 Aug 1965):

Overview

Answer 12

Serious challenges in setting up a truly SG legal system through promulgating key legal documents, reorganizing the court system and the governing of the legal profession. However, to dismiss the post-independence years as crude and slow would be myopic.

Post-independence years led to unwavering adherence to the rule of law and consolidated a new legal system. Due to urgency of social problems and suddenness of independence, the changes were marked by pragmatism.

Question 13

The Post-Independent Years (from 9 Aug 1965):

Consolidation of new legal system

Answer 13

1. Key legal documents vital to legitimising SG’s independence were passed quickly and haphazardly.
   SG constitution comprised 3 separate documents:
   a. Constitution and Malaysia (Singapore Amendment) Act - transferred all powers possessed by federal govt to SG govt.

b. Constitution of Singapore (Amendment) Act - passed 22 Dec 1965, retrospectively took effect from 9 Aug 1965; changed terms in legislature to reflect independence; substituted 2/3 majority required to amend the constitution to simple majority required (reversed in 1979).

c. Republic of Singapore Independence Act 1965 - vested the powers relinquished by the Constitution and Malaysia Act in the legislative and executive arms of SG. Provided broad powers to President within 3 years to make modifications in any written law.
- Pragmatic. To ensure that changes were swiftly effected so that economic and social reforms could be carried out quickly.

Question 14

The Post-Independent Years (from 9 Aug 1965):

Reorganisation of Court system

Answer 14

1. SG’s judiciary remained formally part of M’sia’s until 1969 - not independent due to (1) suddenness of SG’s indep, which required more impt social issues to be dealt with first; and (2) sense of familiarity with the existing system since colonial times.
2. Even after reforms (e.g. Constitution (Amendment) Act 1969 - constituted SG’s judiciary, prescribed Courts’ jurisdiction) were passed, SG Judiciary was not fully independent as Privy Council was final CA in SG.
   - Intended to provide a sense of security to foreign capitalists who were not confident of the stature and integrity of SG judiciary (Dr Goh Keng Swee).
   - Even after SG judiciary became more established, did not abolish its link to PC due to comfort with status quo and the sense of legitimacy it gave.
   (Then-MHA Minister S Jayakumar, 1986: Litmus test of the SG Judicial system was that it allowed appeals to the PC, which stood as a trusted arbiter in SG.)
3. Ties to PC began to be cut to prevent PC’s influence (i.e. Chng Suan Tze v MHA on the Internal Security Act).
   - From 1988, Govt thought PC had overstepped boundaries and had started to interfere with SG sovereignty. Appeals to PC made stringent; no civ appeals unless parties agreed, no crim appeals unless CA had dissent or death penalty involved.
   - 1994: Abolishment of all appeals to PC.
4. Speed at which influence of PC was abolished is surprising. Concerns about external interference resulted in swift legislative action that superseded years of inaction driven by commercial reasons. Hastened establishment of a permanent CA in 1989. Civ and crim CAs merged in 1993.

Question 15

The Expansion Years:

Overview

Answer 15

Legitimacy of SG’s legal system assured through a steadfast adherence to the rule of law.

However, there was a backlog problem which damaged public perception about the legal system.

a. Backlog of some 2,000 cases in Supreme Court.
b. Avg 5 years to be heard by SGHC, 2 years by SGCA.
c. Capital case could take 4 years, then a further 2 years.

Question 16

The Expansion Years:

Solving the backlog problem (i.e. CJ Yong’s series of reforms)

Answer 16

1. Streamlined court processes and hastened case disposal.
   i. e. Matters involving little substantive legal issues were removed from HC hearing lists to save judicial time.
2. Technology leveraged to solve backlog problem.
   a. Bureaus set up to help smaller law firms cope with increased use of tech by courts and govt agencies.

b. LawNet: Provided database which sped up dissemination of info and provided efficient alternative to the laborious manual search system.
c. Electronic Filing System: Provided electronic extracts of docs from case files without having to manually check physical copies.

Question 17

The Expansion Years:

Revamping the Courts

Answer 17

1. Independence of the judicial system solved problem of backlog and exposed lower judiciary to a wider variety of cases, improving quality of lower bench.
   a. Permanent CA with 5 judge panel in 1993. Quantum amount to be met before case can be heard at CA = Harder to get hearing at CA.

b. Subordinate Courts afforded wider powers and more flexibility to hear more types of cases. Increase in monetary limits of District and Magistrate’s Courts: Gave DJs opps to acquire broader range of experience and more extensive knowledge of law.
c. Commercial and Civil (District) Courts: Set up in 2000 to deal with the increasing number and more complex nature of criminal and civil matters with commercial facts.

Question 18

The Refinement Years:

Overview

Answer 18

1. Increasing concerns with rising costs of access to justice (high court fees and lawyer fees).
2. Legal profession was shrinking, and there was perception that the Bench was becoming more distant from the Bar.
3. Under Chan Sek Keong CJ’s tenure from Apr 2006, relentless efficiency which had become the hallmark of SLS supplemented with a more human touch.
   - Dev of autochthonous SG laws suited to local conditions but positioned SG well globally too.
   - Centered on the rule of law, efficiency, and modernity.

Question 19

The Refinement Years:

Chan CJ’s Reforms

Answer 19

CJ Chan: Rankings and benchmarks to assess efficiency do not necessarily deliver justice in the right outcomes - “favourable statistics are an indicator of progress but do not make a justice system”.

1. Balance b/w efficiency and just outcomes:
   Judicial reforms must not be done at the expense of sacrificing the quality of justice (i.e. fundamental values of procedural and substantive justice such as due process).
2. Courts should be confident enough to give greater emphasis to the basics of judicial decision making without the recurrent fear of a resurgent backlog. No litigant leaves courtroom with feeling that he has not been given a fair/full hearing because it was done hurriedly.

Question 20

Sources of Law - Pre-1993 Reception by 3 Means:

General Reception

Answer 20

1. Through 2nd Charter of Justice 1826.
   - R v Williams: Sir Peter Benson Maxwell R held that English law, as it existed in 1826, was to be applied to the Straits Settlements, subject to modifications to suit the circumstances of the place and the customs, religions, usages, and manners of the native inhabitants.
2. Notions of suitability and modification were not the case in practice.
   - Suitability: English law would not be received as part of SG law unless it was suited to SG conditions.

• Modification: If English statute/case found to be otherwise suitable to SG local conditions, but would cause injustice/oppression, that case or statute shall be modified before being received as part of SG law.

Question 21

Sources of Law - Pre-1993 Reception by 3 Means:

Specific Reception

Answer 21

1. Refers particularly to the reception of English commercial law under s5 Civil Law Act.
2. S 5 CLA has since been repealed so its relevance is only historical.
   a. S 5(1) CLA specifically allowed reception of English commercial law under a certain set of circumstances. In practice, this has given rise to many problems.

b. Difficulties raised by s5 CLA related to:
(i) the extent of English law received by it (statutes and common law); and
(ii) whether a particular case gave rise to an issue calling for specific reception.

c. Also unclear whether s5 CLA included the reception of common law too.
c. Difficult for courts to ascertain whether an issue relating to one or more of the bodies of law, or to mercantile law generally, had arisen.

Question 22

Sources of Law - Pre-1993 Reception by 3 Means:

Imperial Reception

Answer 22

English statute was applicable in SG when English Parliament enacted legislation that expressly extended to apply in SG.

Only related to more specific areas of law.

Question 23

Sources of Law - Post-1993 AELA:

Background

Answer 23

1. SG courts had power to depart from English common law and rules of equity if found unsuitable or in need of modification under 2nd Charter of Justice.
2. But general reluctance to depart from English law in practice (as most judges and lawyers trained in England).
3. Prior to AELA, there was still uncertainty in determining applicable law (in particular the extent to which English law was applicable).
4. No real effort to develop SG law with frequent citations of foreign authorities, especially English, Aus, M’sian judgments.

Question 24

Sources of Law - Post-1993 AELA:

Application of English Law Act

Answer 24

1. Promulgated in 1993 to clarify the application of English law in SG. S 3 AELA applied English common law up until commencement of AELA, subject to such modifications as applicable to the circumstances of Singapore and its inhabitants.
2. CJ Chan (citing Prof Jayakumar): Purpose of AELA is to “clarify the application of English law, particularly English statutes, as part of the law of SG and remove the considerable uncertainty that currently exists in this regard”.
3. Focused on the need to develop local jurisprudence and cite SG law, which led to a huge spike in the number of SG cases cited over the years.
4. Effect: Sustained increase in role of local jurisprudence after 1993 and a drop in number of foreign cases cited after 1993.

Question 25

Sources of Law - Post-1993 AELA:

Joseph Matthew v Singh Chiranjeev [2010], SGCA

Answer 25

1. Argued that doctrine of part performance was abolished because it had not been expressly preserved by a local equivalent of s 40 of the UK Law of Property Act 1925.
2. CA held that omission of the relevant UK Law of Property Act 1925 in AELA Schedules did not preclude court from holding the doctrine of part performance remained as part of SG law.

“In the circumstances, the doctrine of part performance, which (as we have seen) was developed after the 1677 UK Act, was - and continued to be - part of Singapore law by virtue of the general reception of English law and, subsequently, via s 3(1) of the AELA.”

Question 26

Sources of Law - Post-1993 AELA:

Review Publishing Co Ltd v Lee Hsien Loong

Answer 26

1. Argued by As that the Reynolds privilege (developed by UKHL as a common law defence) was available to the media in an action for defamation.
2. CA held that the privilege did not apply in SG as it was not part of the common law of England before the enactment of the AELA.
3. Even if Reynolds privilege had developed before 1993, it does not mean that it automatically applies and binds the local courts.

“Implicit in s 3(1) of the AELA is the principle that the body of English common law which was part of the law of Singapore immediately before the cut-off date of 12 Nov 1993 (‘pre-AELA English common law’) continues to be the law of Singapore, but not otherwise. After that cut-off date, the common law of Singapore would be the common law as declared and developed by our courts. [emphasis in original]”

Question 27

Sources of Law - Post-1993 AELA:

Practice Statements/Directions?

Answer 27

1. Practice Statement, CA, 1994: Dev of the law should reflect those changes and the fundamental values of SG society. CA not bound by its own decisions or the lower cases, or foreign jurisdictions.
2. Practice Direction, Supreme Court, 2008: Local precedents that have dealt with particular issues are to be cited in preference to foreign judgments. Further entrenched determination to build an autochthonous SG law.

Question 28

Sources of Law - Post-1993 AELA:

Prof Goh on general increase in citation of foreign judgments from 1965 to 2013?

Answer 28

Opined that increase was for comparison purposes.

1. To develop SG law in a bid to reach the best decision.
2. Evidence of dev of an autochthonous legal system with a broad comparative outlook.
3. E.g. Dev of SG common law now different (as exemplified by the development of SG contract law).
4. Foreign courts looking for a different point of view will be able to gain something by looking at the SG case concerned.

Question 29

Sources of Law - Post-1993 AELA:

Overview of AELA Purpose

Answer 29

1. AELA freed our Courts from ties to English law, i.e. they are free down to develop SG common law in whichever fashion it wishes to do.
2. BUT Man Financial v Wong Bark Chuan David: In an increasingly interconnected world, local courts should not be insular, and look beyond the shores for relevant precedents – particularly where controversial or potentially outmoded legal doctrines are concerned.
3. Should not pursue change for the sake of change alone. Important to recognise that a certain degree of uniformity, especially in the commercial arena, might be an important thing.