Law of Singapore
The legal system of Singapore is based on the English common law system. Major areas of law – particularly administrative law, contract law, equity and trust law, property law and tort law – are largely [|judge-made], though certain aspects have now been modified to some extent by statutes. However, other areas of law, such as criminal law, company law and family law, are largely [|statutory] in nature.
Apart from referring to relevant Singaporean cases, judges continue to refer to English case law where the issues pertain to a traditional common-law area of law, or involve the interpretation of Singaporean statutes based on English enactments or English statutes applicable in Singapore. In more recent times, there is also a greater tendency to consider decisions of important Commonwealth jurisdictions such as Australia and Canada, as the Singapore Courts tend to consider decisions based on their logic, rather than their provenance.
Certain Singapore statutes are not based on English enactments but on legislation from other jurisdictions. In such situations, court decisions from those jurisdictions on the original legislation are often examined. Thus, Indian law is sometimes consulted in the interpretation of the and the which were based on Indian statutes.
On the other hand, where the interpretation of the is concerned, courts remain reluctant to take into account foreign legal materials on the basis that a constitution should primarily be interpreted within its own four walls rather than in the light of analogies from other jurisdictions; and because economic, political, social and other conditions in foreign countries are perceived as different.
Certain laws such as the and the remain in the statute book, and both corporal and capital punishment are still in use.
History
Before 1826
Modern Singapore was founded on 6 February 1819 by Sir Stamford Raffles, an officer of the British East India Company and Lieutenant-Governor of Bencoolen, in an attempt to counter Dutch domination of trade in the East. Permission for the East India Company to set up a "factory" on the island was obtained from the Sultan of Johor and Temenggung of Johor on that date under the terms of the Treaty of Singapore, and outright cession of Singapore took place in 1824. It has been suggested that prior to British acquisition of the island, the Malay chief in charge of Singapore was the Temenggung of Johor. The Johor Sultanate was the successor of the Malacca Sultanate, both of which had their own codes of law. It is also possible that adat law, often inadequately translated as "customary law", governed the inhabitants of the island prior to its acquisition by the British. However, little, if anything, is known about the laws that were actually applicable. The British have always assumed that no law prevailed on the island of Singapore when it was acquired.In 1823 Raffles promulgated "Regulations" for the administration of the island. Regulation III of 20 January 1823 established a magistracy which had jurisdiction over "all descriptions of persons resorting under the British flag". The magistrates were enjoined to "follow the course of the British magistracy, as far as local circumstances permit, avoiding technicalities and unnecessary forms as much as possible, and executing the duties of their office with temper and discretion, according to the best of their judgement and conscience and the principles of substantial justice". Raffles' Regulations were most likely illegal as he was acting beyond the scope of his legal powers in making them – although he had power to place the factory at Singapore under the jurisdiction of Bencoolen, he was not vested with power to place the entire island under Bencoolen's control. In this respect, he had treated Singapore as if the entire island had been ceded to the British when the Treaty with the Sultan and the Temenggung had only permitted the establishment of a trading factory.
The same year, Raffles appointed John Crawfurd as Resident of Singapore. Crawfurd doubted the legitimacy of the judicial system set up by Raffles, and annulled proceedings in which magistrates had ordered the flogging of gamblers and the seizure of their properties. He eventually abolished the magistracy, replacing it with a Court of Requests overseen by an Assistant Resident which dealt with minor civil cases, and a Resident's Court hearing all other cases which he himself presided over. Crawfurd had no authoritative guide to the applicable law, so he decided cases on "general principles of English law", taking into account so far as he could the "character and manners of the different classes" of local inhabitants. Unfortunately, Crawfurd's courts also lacked legal foundation, and he had no legal powers over Europeans in Singapore. Serious cases involving British subjects had to be referred to Calcutta; otherwise, all he could do was to banish them from the island.
Despite the dubious legal status of the courts established in Singapore by Raffles and Crawfurd, they indicate that the de facto position was that between 1819 and 1826 English legal principles applied to Singapore.
On 24 June 1824 Singapore and Malacca were formally transferred to the East India Company's administration by the Transfer of Singapore to East India Company, etc. Act 1824. By virtue of the Fort Marlborough in India Act 1802. both territories, together with others in the region ceded to Britain by the Netherlands, became subordinate to the Presidency of Fort William in Bengal, and under the Government of India Act 1800 these territories became subject to the jurisdiction of the Supreme Court of Fort William.
The Indian Salaries and Pensions Act 1825 authorised the East India Company to place Singapore and Malacca under the administration of Prince of Wales' Island. The Company did so, thus creating the Straits Settlements.
1826–1867: The "Indian period"
The statute 6 Geo. 4 c. 85 empowered the British Crown to issue letters patent providing for the administration of justice in the Straits Settlements. The East India Company petitioned the Crown for the grant of such letters patent establishing "such Courts and Judicatures for the due administration of Justice and the security of the persons rights and property of the Inhabitants and the Public Revenue of and the Trial and Punishment of Capital and other Offences committed and the repression of vice within the said Settlement of Prince of Wales’ Island Singapore and Malacca..."Granting the petition, the Crown issued the Second Charter of Justice on 27 November 1826. The Charter established the Court of Judicature of Prince of Wales' Island, Singapore and Malacca, which was conferred "full Power and Authority... to give and pass Judgement and Sentence according to Justice and Right". This key clause was later judicially interpreted to have introduced English law into the Straits Settlements. The present understanding of this clause is that it made all English statutes and principles of English common law and equity in force as at 27 November 1826 applicable in the Straits Settlements, unless they were both unsuitable to local conditions and could not be modified to avoid causing injustice or oppression.
The Charter provided that the Court of Judicature was to be presided over by the Governor of the Straits Settlements and Resident Councillor of the settlement where the court was to be held, and another judge called the Recorder. Problems occurred with the first Recorder, Sir John Thomas Claridge. He complained that the Governor and Resident Councillors had refused to take any judicial business, and so responded by also refusing to take on the full business of the Court. He also bemoaned the lack of a "full, efficient and respectable court establishment of clerks, interpreters. etc." Although expected to travel from his base at Prince of Wales' Island to Singapore and Malacca, due to disputes over travelling expenses and arrangements, Claridge refused to do so. Thus, on 22 May 1828 the Governor Robert Fullerton, together with the Resident Councillor Kenneth Murchison, were obliged to hold the first assizes in Singapore by themselves. Claridge was eventually recalled to the UK in 1829.
The Charter conferred no legislative power on the Governor and Council of Prince of Wales' Island or, indeed, on any other individual or institution. The general power to make laws was vested with the Supreme Government of India and the British Parliament. By the East India Company Act 1813 , Prince of Wales' Island itself had been conferred an extremely limited power to issue regulations relating to duties and taxes it was empowered to levy; pursuant to this power, it issued nine regulations that applied to the Straits Settlements. However, on 20 June 1830 the East India Company reduced the status of Prince of Wales' Island from a Presidency to a Residency. The island thus lost power to legislate for the Straits Settlements, which power was assumed by the Governor General of Bengal. He issued four such regulations applicable to the Straits Settlements.
Upon the downgrading of the Straits Settlements, the offices of Governor and Resident Councillors were abolished. This led Governor Fullerton to conclude that neither he nor the Resident Councillors were empowered any longer to administer justice under the Second Charter. In late 1830, Fullerton closed the courts and dismissed the judicial establishment before leaving for England. This led to legal chaos. Members of the mercantile community were in an uproar as they felt the ensuing confusion and inconvenience of having no local courts would disrupt commercial activity. In Singapore the Deputy Resident Murchison felt compelled to convene a court. However, the Acting Registrar James Loch took the view that the court was illegal, and it was soon closed again. In September 1831 merchants of the Straits Settlements appealed to the British Parliament. By then, the East India Company had already decided that Fullerton had been mistaken. It decided to restore the titles of Governor and Resident Councillor so that these officers could continue to administer justice pursuant to the Charter. On 9 June 1832 the Court of Judicature reopened at Prince of Wales' Island, and disposed of many outstanding cases that had amassed during the two years when the courts were closed.
In 1833, the Government of India Act 1833 . was passed by the British Parliament for the better government of the East India Company's possessions. Sole legislative power was transferred to the Governor General of India in Council, thus inaugurating the period of Straits Settlements history known as the period of the "Indian Acts".
The Court of Judicature was reorganised by the Third Charter of Justice of 12 August 1855. The Straits Settlements now had two Recorders, one for Prince of Wales' Island, the other for Singapore and Malacca.
In 1858 the East India Company was abolished, and territories formerly administered by the Company were transferred to the Crown acting through the recently appointed Secretary of State for India. This was effected by the Government of India Act 1858. There was no change to the structure of the legal system – the Governor General of India continued to legislate for the Straits Settlements.
Unfortunately, many Acts passed by the Governor General during this period were not relevant to the Straits Settlements, and it was difficult to determine which were applicable. The situation was remedied by the passing of the Statute Law Revision Ordinance 1889 , which appointed commissioners to inquire into the matter and empowered them to publish a volume containing the text of any Indian Acts considered in force. Any Acts not included ceased to be applicable forthwith.