A Brief Legal History

The British East India Company

Founded 31 Dec 1600

Royal Charter empowered Company to make laws and ordinances for good government of company and servants

Regulating Act & Pitt’s Act 1784

Parliamentary control over Indian affairs

Powers of Legislation

The British East India Company

Developments after 1773

Provide for establishment of Supreme Court of Judicature at Calcutta

Jurisdiction extended to British subjects

Crown Control over East India Company

Board of Control

Court of Directors

Company Control over Governor-General

Raffles and the Founding of Singapore

Preliminary Agreement with

Temenggong 30 January 1819

Permission to establish ‘factory’

in return for $3,000 a year

Persuaded Tengku Hussein to

be installed as rightlful Sultan

of Johore.

Treaty of 6 Feb 1819

Signed by Sultan Hussein,

Temenggong & Raffles.

Raffles and the Making of LawRaffles’ Regulations 1823

Clearly illegal; Raffles acted outside jurisdiction

Acted as if entire island had been ceded to the East India Company

Power to legislate lay with Governor-General in Council in Bengal

Judicial powers of Calcutta would apparently extend to Singapore via Bencoolen.

Only legislation or law of any sort till 1826.

Raffles’ Regulations

• Establish Registry of Land

• Conduct of Port affairs

• Establishment of Resident’s

Court and Magistrates’ Court

• Gaming

• Prevention of slave trading

Early Developments

• Anglo Dutch Treaty 1824

• Secession of full sovereignty of

Singapore to British Crown

• Resident John Crawfurd’s early

efforts

• Second Charter of Justice 1826

Second Charter of Justice

• Dated 27 Nov 1826; Arrived 20

Mar 1827

• Purpose to extend jurisdiction of

Recorder’s Court at Penang to

Malacca & Singapore

• Establishment of Court of

Judicature

Second Charter of Justice

Jurisdiction of Court of Judicature

• Same as King’s Bench & High Court of

Chancery, Common Pleas & Exchequer

• Recorder - to travel on circuit

• Omitted Admiralty jurisdiction - rectified

1836

• Very limited legislative powers - vested

with Supreme Government in India and

British Parliament.

Judicial Chaos

• Irascible Sir John Claridge

• Abolition of Penang Presidency

• Fullerton’s closure of the courts 1830

• Re-opening of courts 1832

Charter Act 1833 &

Third Charter of Justice

• Charter Act 1833

• Appointment of Indian Law Commission

• Power of legislation for Straits Settlements in Governor-General in Council

• Agitation for end to Indian administration

• Third Charter of Justice 1855

Transfer to Colonial Office

• 1858 - Abolition of East

India Company

• 1866 - Government of the

Straits Settlements Act

placed Straits Settlements

directly under the Colonial

Office in London

• 1867 - Letters Patent

granting colonial style

constitution

Colonial Government• Legislative Council comprising Officials and

Unofficials with Officials forming majority

• Composition:

• Governor

• Chief justice

• Officer Commanding the Troops

• Colonial Secretary

• Colonial Engineer

• Attorney-General

• 4 unofficial Europeans

Changes in Judiciary

• 1868 - Old Court of

Judicature replaced by

Supreme Court of the Straits

Settlements

• Two Divisions of Court:

Singapore & Malacca;

Penang

• Supreme Court given

jurisdiction to sit as Court of

Appeal

The Executive Council

• 1877 - Executive Council

introduced

• Function - to advise

Governor

• Composition - such persons

as may be directed by Royal

Instructions

Reform in the 1920s

• Governor Laurence Guillemard’s reforms

• Establishment of Select Committee to consider

changes to composition of Legislative Council

• Recommended enlargement of membership - Equal

membership of Officials & Unofficials

• Nomination of 2 Unofficials to sit on Executive Council

• Unofficials nonimated by Penang & Singapore

Chambers of Commerce and the rest on racial basis:

5 Europeans, 3 Chinese, 1 Malay, 1 Indian, 1

Eurasian

Judicial Reform

• Court of Appeal created in 1873

• 1907 - Ordinance XXX of 1907

reorganised jurisdiction of the court

• General jurisdiction

• Original Civil and Criminal jurisdiction

• Civil and Criminal Appellate jurisdiction

• Abolition of Quarter Session courts and

Court of Requests.

• Police courts replaced by Magistrates’

Courts

• Court of Criminal Appeal 1934

Japanese Occupation

• British surrender 16 Feb 1942

• Law and justice to be dispensed

according to rules and regulations

of Japanese invaders

• Establishment of Military Court of

Justice of the Nippon Army 1942

• Civil courts re-opened

• Syonan Supreme Court or Syonan

Koto-Hoin

• Court of Appeal constituted by

never sat.

Post-War Arrangements

Creation of the Malayan Union

Disbanding of the Straits

Settlements 1946

Singapore - Separate Crown

Colony with own constitution

Singapore Order-in-Council 1946

Constitutional Arrangements

Executive Council

Governor’s veto preserved

6 Officials

4 Nominated Unofficials

Legislative Council

4 Ex-officio members

7 officials

Between 2-4 nominated unofficials

9 Elected members

Reconstitution Committee

Established by Governor Sir Franklin Gimson

Recommended increase of nominated unofficials

from 2 to 4 to safeguard minority interests

9 Elected seats

3 Seats to Singapore Chamber of

Commerce, Chinese Chamber of Commerce,

Indian Chamber of Commerce

6 seats to be filled by democratic elections

Impact

First elections

Unofficial minority

Developments 1948–54

No change to judiciary

First Election 1948 - Progressive

Party won all seats

Progressives demanded 3

additional seats

Second Election 1951 - 22

candidates contested 9 seats.

Progressive Party won 6 out of 9

seats

Rendel Constitution

Chaired by Sir George Rendel

Recommended automatic system of voter

registration

Mainly elected Assembly

25 Elected Unofficial members

3 Ex-Officio members holding

ministerial posts

4 Nominated Unofficial members

Council of Ministers - 3 ex-officio

Official Members & 6 Elected members

Implemented by Singapore Colony Order-in

Council 1955

1955 Elections

79 candidates contested 25 seats

Labour Front - 10 seats

Progressive Party - 4 seats

People’s Action Party - 3 seats

Democratic Party - 2 seats

Rest - Independents

David Marshall - 1st Chief Minister of

Singapore- foments constitutional

crisis over appointment of junior

ministers

Constitutional Talks 1956–58

1st Conference 1956 - David Marshall swore

to resign if he could not secure independence

for Singapore

Sticking Point - Internal Security

Marshall resigns; succeeded by Lim Yew

Hock

2nd Conference 1957 - Lim Yew Hock

secures self-government - compromise on

Internal Security Council

Singapore Constitution Order-in-Council 1958:

Self-governing status

1958 State Constitution

51 elected members

Yang di-Pertuan Negara as Head

of State

Abolition of post of Governor -

changed to High Commissioner

Little change to judicial structure

General elections held in 1959 -

PAP won 43 out of 51 seats.

Merger & Separation Objective - to secure self-government

and economic viability

Tunku agrees to scheme to form Malaysia comprising Malaya, Singapore, Borneo and Brunei

First referendum 1962

Malaysia Agreement concluded 9 July 1963 - Brunei opts out

Singapore part of Federation of Malaysia with special privileges

Separation 9 Aug 1965 after much turbulence

Independence 1965 Constitutional Patchwork

State Constitution 1958

Republic of Singapore Independence Act 1965

Parts of Federal Constitution 1963

Wee Chong Jin Constitutional Commission 1966

Entrenchment of fundamental liberties provisions

Creation of Council of State to safeguard minority rights and interests

Creation of office of Ombudsman

Entrenching of Judicial Offices

Post 1965 Developments

Creation of Presidential Council for

Minority Rights 1969

Changes to judiciary - new Supreme Court

of Judicature Act - establishment of

structure commensurate with Singapore’s

independence

Appointment of supernumerary judges

1971

Judicial commissioners 1979

Entrenching sovereignty 1972

Changes to Parliamentary system

Post 1965 Developments

Changes to Parliamentary system

Non-constituency MP (NCMP)

1984

Group Representation

Constituency (GRC) 1988

Nominated MP (NMP) 1990

Elected President 1991

Sources of Law

Lex Loci Pre-Raffles

Common Law development

Legislation

The Pre-Raffles Period

Lex Loci

Influence of Sri Vijaya empire

Influence of Chinese traders

Islamic law?

Was it tabula rasa?

The Common Law

1819 - Raffles arrives in Singapore

1827 - Establishment of Court of

Judicature and Second

Charter of Justice

2nd Charter of Justice

Court of Judicature to have

… such jurisdiction and authority as Our Court of

King’s Bench and Our High Court of Chancery

and Our Courts of Common Pleas and

Exchequer respectively

Civil Cases: To

… give and pass Judgment and Sentence according

to Justice and Right.

2nd Charter of Justice

Criminal Cases

… to administer criminal Justice in such or the

like Manner and Form, or as nearly as the

Condition and Circumstances of the Place

and the Persons will admit of, as our Courts

of Oyer and Terminer and Goal Delivery do

or may, in … England due attention being

had to the several Religions, Manners and

Usages of the native Inhabitants.

Law Reports English Law Reports

Woods’ Oriental Cases 1869 -

Robert Carr Woods

Straits Law Reports - Stephen

Leicester - covering cases decided

between 1833 and 1877

Magistrate’s Appeal Cases - 1884-

1891

Cases Heard and Determined in

Her Majesty’s Supreme Court in the

Straits Settlements 1808-1884 -

James William Norton Kyshe - 4

volume

Law Reports

Straits Settlements Law

Reports 1892-1942

Malayan Law Journal (MLJ)

1932 to date - Bashir Ahmad

Mallal

Singapore Law Reports (1st

Series) - published by authority

- 1946-1949

Singapore Law Reports (2nd

Series) - published by authority

- 1946-1949

Legislation 1819-1833: No real legislation

powers

1823: Raffles Regulations illegal

1833-1867: Periods of the Indian

Acts - Legislative powers of

Governor-General

1867-1946: Period of Straits

Settlements Acts and Ordinances

1946-1963: Period of the Singapore

Acts

1963-1965: Malaysia Period

Indian Legislation

1833 Charter Act

William Theobald’s Acts of the Legislative Council of India (1834-

1867)

George Smoult Fagan’s Unrepealed and Unexpired Acts of the

Legislative Council of India from 1834-1870

Problem: Which Acts applied to Singapore?

1889 - Straits Settlements Statute Law Revision Ordinance -

authority to publish volume containing applicable Indian Acts - Indian

Acts passed during the period extending from the 22nd day of April

1834 to the 31st day of March 1867

Straits Settlements Legislation

Main Source: Straits Settlements

Government Gazette

Annual volumes of Ordinances passed

First collated edition - compiled by

Harwood - 2 volumes 1886 - The Acts and

Ordinances of the Legislative Council of

the Straits Settlements from 1st April 1867

to the 1st June 1886

Second revised edition 1925

Third revised edition 1936

British Military Administration Legislation

1945 - Japanese surrendered

Martial law - British Military

Administration

April 1946 - Civilian Government

restored

British Military Administration, Malaya

Gazette, Singapore Division

Proclamations

Orders

Notices

Singapore Acts & Ordinances

1946-1959: Colony of Singapore Government Gazette

1959-1965: State of Singapore Government Gazette

1965: Singapore Government Gazette, then Republic of Singapore Government Gazette (Dec 1965)

1955 - Revised Edition of Statutes (8 Volumes)

1970 - Revised Edition, Singapore Statutes

1988 - Revised Edition

Subsidiary Legislation

1908-1914: Orders, Rules and

Regulations by His Excellency the

Governor in Council during the

year …

1905 - Garrard published two-

volume compilation

Published alongside main statutes

Malaysian Legislation

Federated Malay States Government

Gazette (1909-1945)

Voules’ The Laws of the Federated

Malay States 1877-1920

The Laws of the Federated Malay

States and each of them in force on the

31st Day of December 1934

4 loose-leaf volumes

Kept up to date till 1941

Malaysian Legislation

1946-1948: Malayan Union

Gazette

1948-1957: Federation of

Malaya Government Gazette

1958: Federal Ordinances and

State Enactments passed during

the year 1958

1960-1965: Acts of Parliament

1960

The Judicial Hierarchy:Appellate Courts

Judicial Committee of the Privy

Council (UK) - appeals retained up

to 1994

Previously - All appeals from same

jurisdiction binding (Singapore &

Malaysia)

1994 Practice Statement

The Judicial Hierarchy:Appellate Courts

Establishment of permanent Court of Appeal 1994 - Previously Court of Appeal and Court of Criminal Appeal as part of Supreme Court

Previously applied rule in Young & Bristol Aeroplane via Mah Kah Yew v PP (HC full bench)

Changed with 1994 Practice Statement

1994 Practice Statement

Based on 1966 House of Lords Practice Statement

Rule of Practice, not rule of Law

It is proper that the Court of Appeal should not hold itself bound

by any previous decisions of its own or of the Privy Council …

where adherence to such prior decisions would cause injustice in

a particular case or constrain the development of the law in

conformity with the circumstances of Singapore

Treatment of Other AuthoritiesAll other authorities - Highly persuasive,

especially:

Privy Council from other jurisdictions

House of Lords (UK)

Australian High Court

Departing from Previous Decisions

If decision is wrong

Social or commercial

circumstances have materially

changed

Practical difficulties

Balance need for certainty and

consistency against injustice

The High Court & Subordinate Courts

Vertical - High Court bound by decision of

Court of Appeal or other superior court (eg

Privy Council or Straits Settlements CA)

Vertical - Subordinate Courts bound by

decisions of High Court

Horizontal - High Court not bound by its own

previous decisions

Horizontal - Subordinate Court not bound by

its own previous decisions

Problem of Predecessor Courts

1994 Practice Statement ‘not

intended to affect the use of

precedent in the High Court or in any

subordinate courts’

High Court & Subordinate Courts

must adhere to strict vertical stare

decisis

History of Courts in Singapore -

poses problems of which were

predecessor courts of Court of

Appeal and High Court

Vertical Stare Decisis

Is High Court bound by Privy Council

decisions?

General approach - binding if on same

issue or interpreting statutory provision

in para materia with Singapore provision

Australian High Court approach in Viro v

R - pointless to be bound by decisions

of court no longer hearing appeal from

that country

Problem of Predecessor Courts

1868 - Supreme Court, Straits Settlements

1873 - Straits Settlements Court of Appeal

1931 - Court of Criminal Appeal, SS

1963 - Part of Malaysia - Federal Court replaced

Singapore Court of Appeal, Court of Criminal Appeal

Court of Appeal of Federation of Malaya

Court of Appeal of Sarawak, North Borneo & Brunei

CA, Federation of Malaya 1948 - Federation of Malaya Courts

Ordinance

Replaced Court of Appeal of

Malayan Union which in turn

replaced 7 sets of courts in former

Straits Settlements, Federated

Malay States and Unfederated

Malay States

Malayan Union: Predecessor Courts

CA & CCA, Straits Settlements

CA, Federated Malay States

CA, Johore

CA, Kedah

CA, Trengganu

Court of the Raja in Council of Perlis

Sultan’s Court, Kelantan

Vertical Stare Decisis

Status of Federal Court 1963-

1965 & 1965-1970

Federal Court treated the same

as Singapore Court of Appeal

by virtue of s 88(3) of the

Malaysia Act - Mah Kah Yew v

PP

Use of s 88(3) leads to

absurdities - being bound by

decisions of numerous

predecessor courts

Vertical Stare Decisis

Wisdom of approach in Mah Kah

Yew?

Should High Court be bound by

predecessor courts of the Court

of Appeal which was not part of

its direct lineage?

Problem precedents can only be

overruled by Court of Appeal

Wriggling out through

distinguishing cases or holding

them decided per incuriam

Vertical Stare Decisis

Cutting the Gordian Knot -

Walter Woon

Not bound by any

predecessor court

Start on fresh slate like

Jamaican Court of Appeal -

not bound by a decision of

earlier Courts of Appeal

which existed when

Jamaica was a colony

Vertical Stare Decisis

‘Pure Blood’ Approach - Adopt direct

genealogical line

Privy Council on Appeal from

Singapore

SS Court of Appeal & Court of

Criminal Appeal

Federal Court of Malaysia (1963-

1965)

Federal Court sitting in Singapore

(1965-1970)