Sources of Law in Singapore - SLS-2 Notes PDF

THE SOURCES OF LAW IN SINGAPORE OVERVIEW Ø Pre-1993: Reception by three means o General reception o Specific reception o Imperial Legislation Ø Post-1993: Application of English Law Act o The AELA and sources of law in Singapore o The AELA in practice Rec...

THE SOURCES OF LAW IN SINGAPORE OVERVIEW Ø Pre-1993: Reception by three means o General reception o Specific reception o Imperial Legislation Ø Post-1993: Application of English Law Act o The AELA and sources of law in Singapore o The AELA in practice Reception by three means 1. General Reception Ø Second Charter of Justice resulted in general reception of English law into Singapore Ø In R v. Willians, Sir Peter Benson Maxwell R held that the law of England, as it existed in 1826, was to be applied to the Straits Settlements, subject to modifications to suit the circumstances of the place and the customs, religions, usages, and manners of the native inhabitants o In practice it was not really modified according to local conditions Ø Therefore, with this decision, it was accepted that principles and rules of English common law and equity (as well as pre-1826 statutes of general application) were received into Singapore, as of 1826, subject to the tests of suitability and modification 2. Specific Reception Ø Specific reception refers particularly to the reception of English commercial law under s 5 of the Civil Law Act o 5(1) Subject to the provisions of this section, in all questions which arise or which have to be decided in Singapore with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and with respect to mercantile law generally, the law with respect to those matters to be administered shall be the same as would be administered in England in the like case, at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any law having force in Singapore. § Essentially receives English law in commercial cases under certain circumstances.  Ø DiZiculties raised by section 5 related to the extent of English law received by it and also whether a particular case gave rise to an issue calling for specific reception Ø Section 5 has since been repealed so its relevance is only historical 3. Imperial reception Ø This related to legislation enacted by the English Parliament and which was extended expressly to Singapore Ø Only related to more specific areas of law POST-1993 1. The Application of English Law Act Ø AELA sought to clarify the position of English law in Singapore Ø Minister for Law, Professor S. Jayakumar, announced its purpose as being to “clarif[y] the application of English law, particularly English statutes, as part of the law of Singapore and remove[] the considerable uncertainty that currently exists in this regard.” He also highlighted that the AELA “is one of the most significant law reform measures since [Singapore’s] independence.” Indeed, the first part of the Preamble states that the AELA is “to declare the extent to which English law is applicable in Singapore and for purposes connected therewith.” Ø Section 3: common law of England, so far as it was part of the law of Singapore immediately before the commencement of this Act, shall continue to be the law of Singapore, subject to such modifications as applicable to the circumstances of Singapore and its inhabitants o Similar phrasing to second charter o The diZerence is that these modifications were taken seriously by the courts. Ø Joseph Mathew v Singh Chiranjeev: It was argued that doctrine of part performance was abolished because it had not been expressly preserved by a local equivalent of s 40 of the UK Law of Property Act 1925 o Court of Appeal applying the AELA o Court said that the omission of this in English law does not preclude the doctrine of part performance in Singapore. o CA held that the omission of the relevant UK Law of Property Act 1925 in the Schedules to the AELA did not preclude the court from holding the doctrine of part performance remained as part of the law of Singapore:  § “In the circumstances, the doctrine of part performance, which (as we have seen) was developed after the 1677 UK Act, was – and continued to be – part of Singapore law by virtue of the general reception of English law and, subsequently, via s 3(1) of the AELA.” Ø Review Publishing Co Ltd v Lee Hsien Loong: it was argued by the appellants that the Reynolds privilege, which was developed by the House of Lords as a common law defence, was available to the media in an action for defamation o The Court of Appeal held that the privilege did not apply in Singapore as it was not part of the common law of England before the enactment of the AELA o “Implicit in s 3(1) of the AELA is the principle that the body of English common law which was part of the law of Singapore immediately before the cut-oZ date of 12 November 1993 (‘pre-AELA English common law’) continues to be the law of Singapore, but not otherwise. After that cut-oZ date, the common law of Singapore would be the common law as declared and developed by our courts.[emphasis in original]” o NB: even if it applies before 1993 s. 3 AELA allows modifications to Singapore.