singapore legal system 2

Preliminaries

Examination

Section A: Legal System – Descriptive essay question. Answer 1 out of 2 questions,.

Section B: Constitutional Law – Descriptive essay question. Answer 1 out of 2 questions.

Section C: Constitutional Law – Hypothetical question. One question – compulsory (no choice).

The Common Law in Singapore

Second Charter of Justice

Established Court of Judicature for Prince of Wales’ Island, Malacca and Singapore

Introduced the common law (English law) into Singapore subject to modifications and adaptations

What other law is to be applied?

Major differences from English law

Adapting the common law to local conditions

Development of the Court System

Pre-Second Charter (1827)

Raffles left Singapore in the hands of Major William Farquhar who acted as Resident

Resident also had powers of a Chief Magistrate

Farquhar also had authority as military commandant as well

Chinese, Bugis and other foreign settlers to be placed under immediate superintendence of their respective chiefs.



Higher cases of ‘criminal nature’ not provided for in military regulations –

‘the law of the country as it exists must necessarily be considered in force. The mode to which this law is to be carried into effect will hereafter be defined as experience may direct, and in the meantime the present mode may be observed as far as in your judgment may appear advisable for the attainment of substantial justice.



Farquhar held court with 2 co-opted Malay chiefs on a weekly basis.

Heard appeals from populace against judgments of their kapitans.

Decisions based on common sense rather than on law.


1823

Raffles promulgated his Regulations – illegal.

Provided for a Magistracy and 12 Europeans were appointed to sit as magistrates for 1 year each

1824

Anglo-Dutch treaty (ratified in 1826). Crawfurd instructed to obtain cession of island to EIC

Crawfurd appealed for new Charter of Justice, abolished Magistracy and replaced it with Court of Requests and Resident’s Court

Applied ‘general principles of English law’


1826 – Second Charter of Justice

Arrived in 1827. A year before, Singapore, Malacca and Penang became the Straits Settlements with its capital in Penang.

Court of Judicature consisted of two judges (Governor or President and Resident of the station) and one other judge called the Recorder.

Sir John Claridge appointed first Recorder but refused to sit with his other colleagues and leave Penang

22 May 1828 – Governor Robert Fullerton & Resident Councillor Kenneth Murchison held first assizes in Singapore without Claridge.

1829 – Claridge recalled. No new Recorder appointed.

1830 – Administrative reorganization in Calcutta – posts of Governor & Resident Councillor abolished. Fullerton shuts down the court.


A Period of Chaos

1831 – Merchants petitioned British Parliament. EIC reversed Fullerton’s decision, restored titles of Governor and Resident Councillor and the courts re-opened.

Governor Ibbetson reopened Court of Judicature in Penang in June 1832.

Feb 1833 – Sir Benjamin Malkin appointed second Recorder of the Court of Judicature

Feb 1837 – Court of Judicature given admiralty jurisdiction


Some Problems

By 1830s, Singapore had begun overtaking Penang in importance, yet Recorder based in Penang. For eg, Malkin was at any time no more than 6 weeks in Singapore.

Urgent need for another Recorder for Singapore.

Achieved through Third Charter of Justice 1855. Recorder for Penang and another for Malacca & Singapore – Sir Peter Benson Maxwell & Sir Richard Bolton McCausland respectively.


1858 – East India Company abolished

1867 – Government of the Straits Settlements Act passed – separate crown colony.

1868 – Ordinance V of 1868 established Supreme Court of Straits Settlements in place of Court of Judicature with Maxwell as Chief Justice and Sir William Hackett as Judge of Penang.

1868 – Legislative changes to disqualify Governor and Resident Councillor from being judges.

1873 – Supreme Court consists of Chief Justice, Judge of Penang, Senior Puisne Judge & Junior Puisne Judge. Supreme Court given jurisdiction to sit as Court of Appeal.

1878 – Equity and Pleas sides of the court abolished and fused.


1907 – Courts Ordinance – major overhaul to the court system. Creation of two divisions: Civil original & appellate; and criminal original & appellate

1907 – Districts Courts with civil & criminal jurisdiction established. Old Magistrates Courts replaced by Police Courts.

1935 – Courts Ordinance – consolidate law relating to the Courts


1948 – New Constitution for Singapore as separate crown colony. Article 14 - Chief Justice and Judges appointed my the King or by Governor representing the King.

1955 – Courts Ordinance to consolidate legislation pertaining to the courts – references to the English High Court continued to appear frequently

1963-1965 – Federation of Malaysia. Federal Court sitting in Singapore

1969 – Supreme Court of Judicature Act finally got rid of anomaly


1970 – Subordinate Courts Act – consolidated law and jurisdiction of subordinate courts. Provided for: District Courts, Magistrates’ Courts, Juvenile Courts and Coroner’s Courts.

1989 – Constitutional amendment – restrict appeal to Privy Council only in civil cases if both parties agreed; and in criminal cases, only if death penalty was involved.

1993 - Supreme Court of Judicature Act amended to constitute permanent Court of Appeal. Judicial Committee (Repeal) Act – no further appeals to Privy Council

1994 – Practice Statement on stare decisis.

Codes in a Common Law Jurisdiction

Penal Code

Criminal Procedure Code

Evidence Act

The Indian Penal Code

Early British intervention in India – grant of diwani but not nizamat

Up to 1833 – British judges attempted to overlay English criminal law over chunks of Islamic law and local custom

1833 Charter Act – British Parliament had authority to legislate for India. Appointment of Indian Law Commission.

Lord Thomas Babington Macaulay – draft of Indian Penal Coe

Macaulay:

A Code is almost the only blessing – perhaps it is the only blessing to to which absolute governments are better fitted to confer a nation than popular governments

Our principle is simply this – uniformity where you can have it – diversity where you must have it – but in all cases, certainty.

It is a work which cannot well be performed in a an of barbarism – which cannot with great difficulty be performed in an age of freedom.

Indian Penal Code

Took almost 20 years before Macaulay’s draft was enacted into the general criminal law of India.

Brilliant piece of drafting. Enacted whole save for minor amendments and modifications.

James Fitzjames Stephen: ‘To compare the Indian Penal Code with English criminal law was like comparing Cosmos and Chaos.’

Straits Settlements Penal Code

Indian Government reluctant to extend Code to Straits Settlements due to impending transfer to Colonial Office

Agitation by SS, especially by Governor Orfeur Cavenagh caused India to apply the Code to the Straits but not effected till 1871 through local re-enactment.

Between 1868 & 1871, introduction of the Code was met with opposition by members of both Bench & Bar. Preference for English criminal law.

Judges & lawyers in Penang were much more keen.

Eventually, public demand won the day. Had to wait till passage of Criminal Procedure Bill before it was finally passed by the Legislative Council on 25 May 1870. Came into operation 1 October 1870.

The Criminal Procedure Code

Had relatively trouble-free passage.

Possibly because it was subordinate to substantive law (ie Penal Code)

Seen a complementary to Penal Code which had already been vigorously debated.

1870 – pursuant to passage of the Penal Code, CPC was enacted. However, this was not in the form of a Code but a relatively short statute compared to the Code that was finally enacted in 1900.

1873 – Code re-enacted as interim measure. Intended to effect changes vis-à-vis jury system. Abolish Grand Jury.

Evidence Act

Based on Indian Evidence Act drafted by James Fitzjames Stephen.

Unlike Macaulay, Stephen based his Act purely on English law. It is, in his own words ‘little more than an attempt to reduce the English law of evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.’

Straits Settlements Evidence Ordinance

Passed through the Legco fairly smoothly.

Legislations clearly meant to simplify evidentiary rules without a recourse to the common law rules which were disorganized and haphazard.

Indian legislation that would be adopted to local circumstances.

The Jury in Singapore

Blackstone: ‘sacred bulwark of the nation’

Lord Devlin: ‘the lamp that shows that freedom lives’

Tocqueville: ‘It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government.’


Imported to Singapore, Penang, & Malacca through the Second Charter of Justice

1926 – Introduced into Federated Malay States through Criminal Procedure Code (for capital offences) but continued to be trial by judge and two assessors

1958 – Jury system introduced into Federation of Malaya for all capital offences only except for Penang & Malacca (all offences)

1960 – Singapore restricted jury to capital cases

1970 – Jury system abolished.


Jury comprises 7 members though it can sit with 6 jurors in certain circumstances

Verdicts must either be unanimous or by a majority of not less than 5-2, and the court must concur with the verdict or order that the accused be tried before another jury

Qualifications – at least 21 years old, of sound mind and not blind, deaf or other infirmity.

Those over 55, teachers, veterinary surgeons and registered dentists are exempt from serving as jurors.

Why the Jury was Abolished?

Prime Minister Lee Kuan Yew was determined to abolish it after seeing how it could be manipulated

Considered it to emphasize a lawyer’s skill and agility, rather than on substance of the case. Too much a ‘trial by the English-educated’.

Objections from the Bar – led by David Marshall and AP Rajah but the public was silent.

Public policy arguments – system was unreliable. Many Singaporeans are insufficiently educated to be jurors.

Dealing with ‘Indigenous Law’

Birth, Marriage, Death & Succession

Chinese Polygamous Marriages

Malay intestacy and wills

singapore legal system 2

Education