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Singapore Legal System 1
 

Singapore Legal System 1

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    Singapore Legal System 1 Singapore Legal System 1 Presentation Transcript

    • 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 Law
      • Raffles’ 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 Authorities
      • All 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)