Week 2: Development of Singapore's Legal and Constitutional System PDF

Week 2: Development of Singapore’s Legal and Constitutional System BRANCHES OF GOVERNMENT Legislature - parliament led Parliament Prime body for decision making in country by PM MPs Representative democracy: individuals sta...

Week 2: Development of Singapore’s Legal and Constitutional System BRANCHES OF GOVERNMENT Legislature - parliament led Parliament Prime body for decision making in country by PM MPs Representative democracy: individuals stand for election to represent the people hence expected to make laws that reflect the will of the people *Ordinary MPs do not have resources, expertise and time to table bills. NCMPs “Best losers”. Enjoy same voting rights as MPs S39(1)(b) of the Constitution: NCMPs shall not exceed 12 in number, but there are currently 9 NCMPs Parliamentary elections act s52(1): NCMPs shall be 12-B, where B = opposition members elected into parliament. 2016 amendment altered Article 38 of the constitution - NCMP voting powers are enlarged; they have the same voting rights as elected MPs. They can vote on bills amendments to constitution, supply bills, money bills, votes of no confidence in the government, removal of president - Rationale: “NCMP have as much mandate as voters to be in the House as constituency MP’s” NMPs Independent of any political parties, appointed for 2.5 years on the recommendation of the Special Select Committee (consists of Chairman and 7 members of parliament). If the seat becomes empty (because one’s term has concluded etc.), the president can nominate someone together with the Special Select Committee. Ensure greater diversity of voices in the house, and contribute independent views. Represent interests of wider groups. s39(1)(c) of the Constitution: NMPs shall not exceed 9 in number. Can debate and vote on all issues except - A bill to amend constitution - A supply bill - A money bill - A vote of no confidence in the government - Removing the president from office 7  PCMR - Consider and report matters affecting racial/religious community - Made of Chairman (appointed for 3 years), up to 10 permanent members appointed for life, and 10 ordinary members appointed for 3 year terms. - Appointed by president under the advice of the Cabinet - Qualification criteria: - Citizen of Singapore - > 35 years of age - Resident of Singapore - Not disqualified under article 72 (of unsound mind, discharged bankrupt, convicted of an offence with a fine of >$10,000 or imprisonment of paper then developed, talk to stakeholders etc. 2. Cabinet agrees to bill in principle, perm sec prepares detailed statement of proposed contents for AGC 3. AGC drafts bill, goes for vetting by MinLaw and reading in Parliament. 4. First reading: Short title read, matter will be discussed in next available seating 5. Second reading: Minister makes speech as to why bill is tabled, debate with MPs and scrutinise clauses. It is then moved to a committee (either the whole house, or select committee). Amendments to the bill made here. 6. Third reading: Read with all amendments and given final approval. Small oversights may be amended, but not the underlying principle of the bill. 7. Sent to PCMR for approval, then president. 8. Once assented, it becomes an act of parliament. Comes to effect once gazetted. *Parliament can bypass the President's assent to draft laws in an emergency. Subsidiary Parliament delegates legislative power to the executive legislation branch. To prevent abuse by executive, all SL is made pursuant to powers under the parent act EXECUTIVE - Specific Facts (cabinet, led by speaker) Prime Minister Appointment - Appointed by the president from among the members of the Parliament Head of the who according to the Constitution, in his judgement are likely to command executive the confidence of the majority of the members of Parliament. branch but the - Usually the leader of the party forming the majority in Parliament 8 executive authority is President can declare the position as vacant if vested in the 1. PM resigns President 2. President acting in his discretion is satisfied that the PM has lost confidence of the majority in Singapore - Commands a majority of the Parliament’s seats - Has the power to appoint other ministers and choose a member of Parliament to be part of the Cabinet - Retains his charge in any department or subject (can also be a Finance minister) Cabinet A body of high ranking members of government that directs state policy and is responsible for the daily administration of the country. Appointed by the president in consultation with the PM. Statutory Autonomous government agencies that are established by an act of parliament Boards (not in that sets out its purposes, powers and rights. → not staffed by civil servants and the executive, has much greater flexibility separate from government) President In the past (Yang di-Pertuan Negara) (previously Powers: known as the 1. Appoint PM Head of State) 2. Declare office of PM empty 3. Withhold assent to dissolve Parliament Elected: (under article 1 of the old state Constitution), President elected by Parliament by a majority vote. Each term is 4 years. The PM/ ¼ of the total number of members of parliament can pass a motion that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity, or that the president has been guilty of: - Intentional violation of the Constitution - Treason - Misconduct or corruption involving the abuse of the powers of his office - Any offence involving fraud, dishonesty or moral turpitude - Intentionally or knowingly making a materially false or misleading statement of fact, or intentionally or knowingly failing to state a material fact to the PEC for demonstrating his eligibility to be elected as a president. CJ will then appoint a tribunal (> 5 supreme court judges including CJ) which investigates the allegations. When the tribunal is of the opinion that the president is incapable of discharging the functions of his office, parliament passes a resolution by at least ¾ of the members of parliament to remove him from office. 1991: President’s power were amended Key changes: - Office of President was filled by a popular election - Reason: proposed by PAP when they felt there was nothing to safeguard Singapore’s substantial financial reserves from a populist government, 9  should such a government be elected into power. - Presidential term is now 6 years. Powers: - Appointment and dismissal of PM (presumably “in his judgement”) - Proroguing and dissolving Parliament - The President has personal discretion in determining whether or not the office of the PM has been vacated and whether the Member of Parliament is likely to command the confidence of the majority in the legislature. Once he makes this determination, he must dissolve parliament to pave the way for general elections. - Discretion during an Emergency - if the President is satisfied that the “security and economic life of Singapore is threatened”, he may issue a Proclamation of Emergency (whether the parliament is in sitting or not) - Approve or withhold consent to bills (usually within 6 weeks, but 30 days for the things below) - Refuse a bill that would draw down Singapore’s past financial reserves (accumulated during the past term of office) - Safeguard mechanism triggered in 2009, when S R Nathan approved drawdown of 4.9 billion to fund Jobs Credit Scheme - Refuse a bill that would directly or indirectly lead to the curtailment and circumvention of his discretionary powers → may refer this bill to the Presidential Tribunal - Withhold concurrence for the continued detention of persons under Singapore’s preventive detention laws - Withhold concurrence for the issue of prohibitions/restraining orders under the Maintenance of Religious Harmony Act - Consent to investigations undertaken by CPIB even if the PM refuses his consent - Refuse and appoint any key public service appointments (including statutory boards) - May refuse to approve the budget of statutory boards and government companies Reasons for Extended Powers 1. Government felt that it was important to have an effective check. Therefore, President’s increased role as Guardian of National Reserves a. Concerns that there was nothing to safeguard Singapore’s substantial financial reserves from a profligate or populist government (overly-strong government due to dominance of PAP). 2. President’s role extended to secure integrity of Civil Service 3. There had just been a Marxist conspiracy and the Government wanted to effectively exclude the courts from dealing with ISA. However, presidential discretion here is subject to advice from the Cabinet. 4. Wanted a check for Maintenance of Religious Harmony Act, but wanted to exclude the courts as well Note: The Council of Presidential Advisers must concur with the president in order for his veto powers to be usable. Furthermore, the presidential veto could be vetoed back by ⅔ majority vote in Parliament. 10 Presidential vetoes on Bills without the CPA’s assent can be overruled by a ¾ Parliamentary vote. Qualifications - A Singapore citizen - Of at least 45 years - Be resident for not less than 10 years - Must have previously held a high office in a number of posts listed under articles 19(ii)(g) of the constitution or CEO of a company with capital of at least SGD 100 million (changed to shareholder equity of SGD 500 million in 2017) - Satisfy the Presidential Elections Committee that he is a person of integrity, good character and reputation. Features of the office - Provisions relating to the president cannot be amended without the President’s concurrence unless it is supported by a referendum by ⅔ majority. - The qualifications for candidacy are extremely stringent. - Any candidate wishing to run for office cannot be a member of any political party - If there is only one candidate, it will be a walkover. Mr Ong Teng Cheong was Singapore’s first elected President A few amendments to the Elected Presidency scheme were made in 1994: - Candidates must fulfil certain qualifications in terms of appointments - If the president allows the government to draw upon its reserves, he must publish a rationale of his action in the Gazette - Transfer of surpluses between stat boards does not require Presidential assent. - Established a special tribunal to render opinions on constitutional issues - The presidential veto is ineffective in ‘any defence and security measure’. Further changes were made in 1996: - The President will be deemed to have assented to a bill upon the expiration of 30 days after the Bill has been presented to him for his assent if he does nothing. - In the veto powers of appointments of public officers, members of statutory boards and directors of government companies, the parliament may, by resolution passed by not less than ⅔ majority overrule the decision of the President. Constitutional changes in 2016 - Reserved election for a community if it is not represented for 5 terms (30yrs). A community is defined as “the Chinese community; the Malay community; or the Indian or other minority communities” Presidential Elections must be held within 6 months if the office of the President becomes vacant prior to the expiration of the term of office of the incumbent, and a writ for the election has not been issued, or not more than 3 months before the date of expiration of the term of office of the incumbent. 11 Council of Members: Presidential - 8 members (appointed at 2 year intervals) Advisers - 3 divisions (one member appointed by President, PSC Chairman and President on advice of PM) Requirements - Citizen - More than 35 years old - Resident of Singapore - Not of unsound mind, discharged bankrupt of convicted of an offence Functions - Advice president on his discretionary powers - President must signify his decision in the case within 30 days, within 15 days after the case has been referred to the Council Cabinet Singapore’s first modern cabinet emerged from the Rendel Constitution and Regulations David Marshall led it. The minister salaries (MR-4) is benchmarked at 60% of the median income of the top 1000 Singapore earners. Cabinet ministers are not allowed to hold any ‘office of profit’ or be actively engaged in any commercial enterprise. The Cabinet can only be summoned by the PM, who must as far as possible, “attend and preside at meetings of the Cabinet”. If a policy proves unsuccessful or highly unpopular with Parliament, the whole Cabinet must resign (under the principle of collective responsibility) Attorney- - Appointed by the President in concurrence with the PM General - Can only be removed by President on the PM’s advice if he is by reason of infirmity unable to continue as AG or for misbehaviour. - Does not enjoy the same security of tenure as Supreme Court judges - Serves as the: - Government’s principal legal advisor (advises Singapore government on the law to help them decide course of action) - Public Prosecutor (responsible for instituting, conducting and discontinuing any proceedings for any offence, independent from the government) Westminster The distinction between the legislative and executive branches of government are Parliamentary blurred by 2 factors: System 1. PM and the cabinet being drawn from members of Parliament 2. Strict party discipline that requires members of the same political party to vote according to party lines (unless the whip is being lifted) - Members of the Executive Branch are drawn from the legislature - Eg. You cannot become Singapore’s PM or cabinet members unless you were first an elected Member of Parliament (Legislative System) - This is distinct from the presidential system of governance in the US, in which there is a clear distinction between the Legislature and the 12  Executive Principles of the Westminster System → objective of the Westminster system is to establish a form of government that is democratic, accountable, and based on the rule of law, with an emphasis on the separation of powers and checks and balances. - Parliamentary supremacy - Cabinet government (executive government is drawn from the parliament, and the ministers/PMs are also typically members of the parliament) - The government is responsible and accountable to the parliament - Usually involves bicameral legislation - Emphasis on rule of law → there nobody is above the law - Political pluralism → allows the coexistence of multiple political parties Judiciary’s Chng Suan Tze v Minister for Home Affairs and others : All power has legal cap on limits and the rule of law demands that the courts should be able to examine the executive exercise of discretionary power. If the executive in exercising its discretion has exceeded the four corners under which Parliament has decided it can exercise its discretion, a court of law must intervene. DEVELOPMENT OF SG LEGAL SYSTEM Pre 1819 East India The EIC was granted a charter by Queen Elizabeth I in 1600 Company which empowered the company to ‘make laws, ordinances, etc for the good government of the Company and its servants and to punish officers against them by fine or imprisonment according to laws, statutes and customs of the realm. Authorised to: - Appoint governors for proper control and admin - Administer civil and criminal justice with respect to their employees The Regulating Act of 1773 empowered EIC with powers of legislation. Supreme Court of Judicature had jurisdiction that extended to all British Subjects under protection of EIC 1784 Pitt’s Act of The Act established a Board of Control, consisting of 6 India members who were empowered to control and oversee all acts that relate to civil and military government or revenues of the British territorial possessions in the East Indies. - Board of controllers set up for political activities - Court of directors set up for financial activities 1819 Raffles 6th Feb 1819: Raffles signed a preliminary agreement with Landing in SG Temenggong (Sultan of Johore) which permitted him to establish a British factory on the island in return for $3000 a 28th Jan 1819 year. He later persuaded Hussien to become the rightful sultan of Johore to permit EIC to build a factory on the island. Farquhar (Resident of Singapore) vested with authority of chief magistrate. He co-opted 2 Malay chiefs to establish a system for administering justice, and his decisions as Resident were Final. 13 1823 Raffles Raffles Regulations (a series of laws and regulations on trade, Regulations jurisdiction and other issues) (1) No.1 provided for the setting up of a Registry of Land (so they could not validly transfer the land until it was registered) (2) No. 2 provided for the conduct of the affairs at the Port (3) No. 3 provided for the setting up of a Magistracy who were nominated yearly by the Resident (this magistrate were to try minor civil and criminal cases under the general supervision of the Resident) (4) No. 6 provided for setting up a Resident’s Court and a Magistrate’s Court to further the objectives in No. 3 (5) No. 4 and 5 dealt with gaming and prevention of slave trading. This code of law was beyond the legal powers of Raffles because he treated Singapore as if the whole island had already been ceded to the British. 1823 Crawfurd’s John Crawfurd could not establish legally constituted courts in Administration Singapore because - The rights of Singapore had not been obtained with respect to Singapore yet - Their rights were not ratified by the British Parliament until 1826 (so they were only legally established in 1826). Raffles Magistracy was abolished, replacing it with Court of Requests (small debt’s court) and Resident’s court (which decides all civil and criminal cases). Crawfurd was the second resident of Singapore (after Farquhar) in 1823. He decided on cases based on the ‘general principles of English law’, taking into account the ‘character and manners of the different classes’ of local inhabitants. 1824 Anglo Dutch In June 1824, SG was ceded to the British, transferred to EIC. Treaty On 19th Nov 1824, the Sultan and Temenggong agreed to cede to EIC completely. Subject to jurisdiction of Supreme Court of Judicature in Calcutta (seat of the British government in India that made laws for Singapore) Westminster could legislate for Singapore. 1826 Second Applied to all the Straits Settlements (Penang, Malacca and Charter of Singapore). Justice Established Court of Judicature for Straits Settlements based in Dated 27 Nov Penang (under jurisdiction and Authority of King’s Bench). 1826, arrived Appointed a recorder (1st recorder: Sir John Claridge) to 20 Mar 1827 preside over its hearings, and it had the same jurisdiction as the High Court in England, as well as in the Courts of Chancery. 14 Application of English law: English law to be applied was the law of England, and modified in application according to circumstances of place. Legislations existing in 1826 England were also transferred to Singapore. Not all statutes applied, only those of general application and which could be applied to local standards (e.g. fraud). But it was impossible to say which acts were imported. No English statute passed after 1826 became part of Singapore, except for “mercantile law” (as provided under S5 of Civil Law Act, repealed in 1993) 1. Suitability: if English statute/case found to be unsuitable to local circumstances, would not be received as part of Singapore law. 2. Modification: if English statute/case causes injustice, then could be modified - Court was to “have and exercise jurisdiction as an ecclesiastical (Christian) court, so far as the several religions, manner and customs of the inhabitants… will admit” - Criminal : Court was to "administer criminal justice in such manner and form" as the courts in England, with "due attention being (given) to the several religions, manners and usages of the native Inhabitants". - Civil: “Give and pass judgement and sentence according to Justice and Right” - Constitution: Past laws would continue in force, subject to modifications to suit local needs - Governor, Resident Councillor were lay judges. The Recorder (based in Penang) was a legally trained judge. - Powers to make law vested with the Supreme Government in India, and British Parliament. Reception of pre-1826 legislation - All statutes enforced in England as of 26th Nov 1826 were potentially enforced in Singapore - However, only statutes of general applicability and statutes that were suited to the condition of Singapore was introduced (suitability) - Statutes that were purely local and pertaining to the UK would not become part of SG law. - Yeap Cheah Neo v Ong Cheng Neo : Held that statutes relating to local conditions of England do not become part of the “particular colony’s” law - Problem: there was no exhaustive list of statutes (later resolved by the AELA 1993) imported into Singapore, making it difficult to determine which laws imported by the 2nd charter were applicable. Common Law in Singapore 15  - The use of English Common Law in Singapore was subject to modifications to suit the customs, manners, usages and religions of the various races in Singapore. - E.g. [personal law] common law rule of marriage (1 man + 1 woman) was expanded to recognise the polygamous marriages of Chinese and Muslims in Singapore - However, in commercial and land law, no concessions were given to local customs. - Personal laws were modified, creating an indigenous straits law system which purportedly gave effect to native custom - For criminal law, modifications based on local customs and religion only took place in the first 50 years. After the Penal Code was introduced in 1872, no more modifications were made for Criminal Law. From 1824 (SG ceded to the British) -1963 (before merger), the imperial parliament at Westminster continued to legislate for Singapore. Such imperial statutes include: 1. Article 162 of Constitution: Ensures that all existing laws shall continue in force after independence. 2. Fugitives Offender Act in 1881, Maritime Conventions Act 1911, Copyright Act 1911, Carriage by Air Act 1932, etc. 1827 - 1832 Reorganisation - Sir John Claridge, who was supposed to be the first recorder was recalled on charges of insubordination in 1829. - SS fell under the direct control of the Bengal Presidency. - This reorganisation led to legal chaos because since there was no Recorder, under the old charter, no one was legally entitled to administer justice (leading to the closure of the courts). - Later, the courts reopened → Robert Fullerton changed from governor to commissioner, Robert Ibbertson became the new governor. - Second recorder: Benjamin Malkin 1833 Charter Act of Governor General in India was empowered to legislate for 1833 Straits Settlements. He was the only source of legislative power in Singapore. This led to unhappiness because the needs and interests of Singapore were neglected. 1855 Third Charter Established a separate court for Malacca and Singapore of Justice Brought an extra recorder (Richard Bolton McCausland) for Signed on 12th Singapore and Malacca. August 1855 1858 Regina v Regina v Willans Willans case Facts: A Chivatean was contracted to work in Penang in a sugar estate. After a month, he decided not to show up 16  anymore and he was punished by hard labour. After that first charge, he decided not to show up again for work and he got brought back to court. The magistrate did not think he had jurisdiction to charge him a second time under the same statute and contract (under the Master and Servant Act). Held: The Master and Servant Act applied to Penang Larger issue: what law applies to the Straits Settlements? General rule of law determining what law to use - If it is (1) an uninhabited land found by British subjects, the Law of England becomes the law of the land. If it is (2) an inhabited country obtained by conquest or cession, the law in existence continues in force until changed by the new Sovereign. - Penang fell under neither branches. However, there was no body of known laws recognised in Penang. The law of England was also hardly recognised as the personal law of its English inhabitants. Important takeaways: Sir Benson Maxwell (first chief justice of the Straits Settlements) held that the Second Charter necessitated the practice of English Law into the Straits Settlements subject to suitability and modification (to suit local circumstances). He interpreted the phrase ‘give and pass judgement and Sentence according to Justice and Right’ as an instruction implying the application of English Common Law This was further endorsed in the Privy Council case of Penhas v Tan Soo Eng which determined whether a marriage between a Chinese and a Jew was valid. PC held that there was a valid common law marriage, which would only be possible if common law had been enforced in Singapore. 1866 Transfer to the ETC was abolished and the Straits Settlements was separated Colonial Office from the Government of India. Passing of the Straits Settlement Act (10th August 1866) 1867 - 1942 Detachment of 1 Apr 1867: Legislative council established in SG Straits - fully nominated and non-elected body Settlements - Consisted of the Governor, chief justice, officer from India, commanding the troops, colonial secretary, colonial forming its own engineer, attorney general and 4 unofficial Europeans crown colony. 1868: Supreme Court of Straits Settlements was established, replacing the Court of Judicature of Straits Settlements. Governor and Resident Councillors ceased to be judges. This court had its own Chief Justice. 17  1873: Court of Appeal set up 1877: Executive council established in SG - Purpose: advise the governor on all affairs of importance unless they were too urgent to be laid before it, or of such a nature that reference that it would prejudice the public service. 1878: Straits Settlements Civil Law Ordinance of 1878 (currently retained under the CLA) - Fused the concepts of common law and equity → so courts practise both concurrently - In cases where the principles of common law and equity conflict, equity will prevail. 1924: Guillemard introduced some modifications to the Legislative Council instead - 2 unofficial members were to be nominated by the Governor to sit on the EXCO - The council was enlarged to 26 members - The Penang and Singapore European chambers of commerce were each allowed to nominate one unofficial - The Governor nominated the rest on a racial basis This was based on the Westminster model, where the unofficial members were counted as the “loyal opposition” 1931: Separate Court of Criminal Appeal established 1942 - 1945 Japanese Military Court of Justice established. All former British laws Occupation applicable. The pinnacle court was the Syonan Supreme Court, and all existing courts ceased to function. 1945 After Surrender Singapore was governed by the British Military Association and all ‘laws and customs existing immediately prior to the Japanese Occupation were respected’. The Straits Settlements were disbanded and Singapore was treated as a special colony because it had ‘economic and social interests distinct from those of the mainland’. 1948: They also reformed the Legislative Council and made the following changes: - Number of nominated unofficials increased from 2 to 4 to safeguard minority interests - Of the 9 elected seats, 3 were allotted to the Singapore Chamber of Commerce, the Chinese Chamber of Commerce and Indian Chamber of Commerce - The other 6 seats would be filled by 6 popularly elected members 1945 - 1959 Liberation of All laws prior to surrender were restored. Singapore vested with Straits its own constitution. Judicial structure was not changed. Settlements 18  1946: Colony of Straits Settlements dissolved, split into Federation of Malaya and Crown Colony of Singapore 1951 Second - 6/9 seats were won by SPP (Singapore Progressive General Party) (Labour Party won 2 and an independent Election candidate won 1) (first one was 1953: SPP set a 10 year target date for achieving self the 1948 government, followed by full independence. election for the Legislative Council) 1953 Rendel Recommended that the Legislative Council be replaced by a Commission Legislative Assembly with 25 elected members (out of 32, 4 Nominated members and 3 officials - AG, Colonial Secretary and Financial Secretary) A council of ministers was also proposed. David Marshall was Singapore’s first chief minister. The commission undertook a comprehensive review of the Singapore Constitution. Elections for the new legislative assembly was held in April 1955 and the Labour Front led by David Marshall won the most seats but they did not have sufficient to form a majority so they formed a coalition with the UMNO-MC alliance which won 3 seats. David Marshall had pressed the British for more independence (wanted the appointment of 4 assistant ministers) but failed to secure it, causing him to resign from office after 14 months. His successor Lim Yew Hock was more successful because the British granted Singapore partial independence provided the British had a say in their internal security matters. In 1959, a new constitution was granted for the new state of Singapore which gave large powers to the Federation. However, the Commissioner still had considerable powers. 1959 General Won a landslide victory (43 of the 55 seats) and Lee Kuan Yew Election (PAP) became Singapore’s first prime minister. PAP had proposed to merge with the Federation of Malaya in order to gain full 30 May 1959 independence from the British. 1959 - 1963 Independence Singapore had its own special citizenship and complete control (1963) over trade and commerce but with a 7-member Internal Security Council. Limited self State of Singapore Act converted colony into self-governing government state Throughout this period, the basic structure of the judiciary remained little changed. 1963 - 1965 Merger Malaysia Act 1963: High Court of Singapore subsumed under Federal Courts (so appeals went from the High Court to the 19  Malaysian Federal Court) The merger between Malaya and Singapore happened for 2 main reasons - To achieve political independence - To guarantee Singapore’s economic survival Under the merger, Singapore can retain its own executive state government. They left control over foreign affairs, defence and internal security to the central government but retained considerable power over finance, labour and education Post 1965 9 Jan 1970: Passed the Supreme Court of Judicature Act - Appeals from the Supreme Court were to be heard by the Privy Council - Reversion to a Court of Appeal that was not completely separate from the High Court - No judges of appeal; Court of Appeal was manned by Supreme Court judges Proposed Constitution of Singapore - A new constitution was drafted: - Allowed the government to acquire land for public projects at economic cost - Entrench the multi-racial nature of the new state and to provide protection for the minority races within the document - However, the new constitution was never drafted and a temporary one was adopted by Parliament. This document was a conglomeration of 3 documents - The Constitution of the State of Singapore - The Republic of Singapore Independence Act 1965 - Malaysian Federal Constitution The Republic of Singapore Independence Act of 1965 vested the powers relinquished by the Constitution and Malaysia Singapore Amendment Act in the executive and legislative branch of government. 1980: Reprint of the Constitution was ordered, incorporating all amendments from the AG. Changes to the Parliamentary System - A constitutional amendment was made to protect the sovereign status of Singapore by precluding any surrender or transfer of sovereignty by way of merger, federation or otherwise, unless ⅔ of the electorate supported such a change. - In 1984, an amendment was passed to ensure the representation in Parliament of a minimum number of members from a political party or parties not forming the government (NCMPs). - In the 1988 GE, 3 single-member constituencies clustered together to form 1 GRC. Each GRC will have at least one candidate from a minority race. In 1997, the number of members in a GRC was extended to 6. - In 1990, the Constitution was amended to introduce NMPs so that alternative views on policies can be represented. Amendment to Citizenship Laws 20  - In 1985, an amendment was passed allowing the government to deprive a citizen of his citizenship under certain circumstances, including when a citizen has been ordinarily resident outside Singapore for a continuous period of 10 years. Constitutional Commission - One of the biggest issues that the Government faced was the protection of minority rights and interests. Hence, a Constitutional Commission headed by CJ Wee Chong Jin aimed to safeguard these interests by: - Receive and consider representation on how the rights of minorities can be safeguarded - Consider what provisions should be made to ensure no legislation is considered discriminatory (in a racial, linguistic or religious sense) - Consider what remedies should be provided for anyone who claims that he has been discriminated against by any act or decision of government - Consider how such provisions can be entrenched in the Constitution - The 11 fundamental liberties, the judiciary, the legislature, general elections, minority rights, the special position of Malays and the amendment procedures are also entrenched and only amenable in the amendment secures a vote of ⅔ majority in parliament and at a national referendum. - There is also the creation of the Presidential Council (became the PCMR) whose main function is to advise the parliament on impending legislation and its effect on minorities. - The Commission also proposed to create the office of an Ombudsman to ensure civil servants are held accountable for their duties. 1993: Amendments to the Supreme Court of Judicature Act - Singapore established a permanent Court of Appeal to create a new class of judges known as Justices of Appeal (who rank above the High Court judges in precedence) - Singapore also established a special tribunal which allowed the President to refer to the tribunal “for its opinion on any question as to the effect of any provision’ of the Constitution. 8 April 1994: Singapore passed the Judicial Committee of Privy Council Repeal Act which stopped all appeals to the Privy Council Application of 1993 Goal: to remove all uncertainty on the application of English civil English Law law in Singapore Act First Schedule of AELA - No longer any uncertainty as to which english commercial law is part of singapore law - Lists the specific english statutes that were incorporated as part of Singapore law Section 3 of the AELA - Preserves the common law rules and equity rules in 21  Singapore - Provides that the common law shall continue in force in Singapore so as it is applicable to the circumstances of Singapore and its inhabitants subject to modifications (and was part of the law of Singapore immediately before 12 Nov 1993) - SG stance: SG is generally very sparing in incorporating the English statutory provisions via local amendments (usually only incorporated in areas such as real property, trusts, succession, insurance and piracy) Section 8 of the AELA - Allowed for flexibility → the minister may, on the advice of the Law Revision Commissioners and where he considers it necessary or expedient for the purpose of removing any difficulty arising from local conditions or circumstances in the application of any provision in any English enactment specified in the First Schedule” - However, this does not allow for the deletion or addition of entire statutes → but legislation can be re-enacted as a local statute and amended from there. Civil Law Act s.5 - CLA s.5 continued to receive English Commercial Law on the principle that our system should be completely aligned with the English system on commercial/ mercantile matters - However, after UK joined the EU, the English Commercial Law included EU Legislation, making the application of the UK law uncertain - Furthermore, the courts had other difficulties with the provision: - How was the local court supposed to ascertain whether the issue was relating to mercantile law? → they had to look at the nature of the transaction and the subject matter (creating a lot of uncertainty and subjectivity) - What law was to be administered? → if the entire law of England was to be administered, it would compromise the independence and development of SG law. - Lawyers tended to just avoid applying this provision altogether - The AELA provided for 13 English commercial statutes to take the place - In 1993, Singapore decided to stop receiving British Law in this area and created her own Partnerships Act (which is an exact copy of the British version, but helps to avoid all ambiguity on which rules should apply) Need to Develop an Autochthonous Legal System Importance: 22  1. More attuned to the mores, needs and aspirations of its society 2. National Pride 3. Building and reinforcement of a spirit of professionalism and service with respect to the legal profession 4. Development of legitimacy of the legal system as a whole in the eyes of the public itself Yong CJ - “We must continue to evolve our own rules of procedure, suited to our own urban, multiracial, multilinguistic, Asian society. Our approaches to the law must reflect our own Asian values, such as consensus and respect for authority and the group.” In Xpress Print Pte Ltd v Monocrafts Pte Ltd, Yong CJ departed from the English law and made a judgement that was wholly consistent with local conditions and the layperson’s concept of justice. 23