The Reception of English Law

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The position prior to November 1993

Singapore’s legal system has its roots in the country’s colonial past. Besides the British legal system, Singapore law also drew from the Indian Penal Code and Evidence Act, the Australian-influenced Companies Act and over time, developed its own distinct local character in laws relating to land, drug trafficking, corruption and vandalism.

Cover page of draft Charter. Source: United Kingdom National Archives
Sir Peter Benson Maxwell (1816-1893) arrived in the Straits to become Recorder of Penang in 1866. In 1867, he succeeded Sir Richard McCausland as Recorder of Singapore and then became the first Chief Justice of the Straits Settlements. (Source: Singapore Academy of Law legal heritage collection)

The general reception of english law via the Second Charter of Justice

The period from 1819 to 1826 marked a time of legal chaos with no known body of law. The arrival of the Second Charter of Justice in 1826 was therefore a milestone in Singapore’s legal history. The Recorder of Singapore and first Chief Justice of the Straits Settlements, Sir Peter Benson Maxwell, held the Charter to have introduced English law into Singapore.[1] The quantum of English law received in Singapore was however, limited by two main factors. Firstly, no English statute passed after the “cut-off date” of 1826 became part of the corpus of Singapore law. With regard to the (unwritten and non-legislative) common law, this position posed some difficulties. One line of thought was that the unwritten common law was “timeless” and represented legal principles that had always existed; as such, no “cut-off date” ought to be applied. The other line of thought was that the “cut-off date” should apply to the common law.[2]

The second limitation on the reception of English law was related to “suitability” and “modification.” If an English statue was found unsuitable to local circumstances, it would not be received as part of the corpus of Singapore law. And if an English statute was otherwise suitable to local circumstances but when applied would cause injustice or oppression, the particular statute would be modified. The basic rationale was ensuring that that Singapore received the best of both worlds – the developed and even-handed system of English law and the preservation of viable native law and customs.

There was no certainty as to what English law was received, given the hundreds of English statutes or Acts of Parliament that were potentially applicable.

The Specific Reception of English Law

The specific reception of English law concerns a situation in which a local statute or act of Parliament allows local courts to refer to and apply the relevant English law in that particular field. This may help fill a ‘gap’ in the local law. There were several provisions that related to the specific reception of English law including Section 5 of the Criminal Procedure Code and the now-abolished Section 5 of the Civil Law Act.

The position after November 1993

The Application of English Law Act

The Application of English Law Act was passed by the Singapore Parliament in 1993, almost 175 years after the founding of Singapore in 1819 and is described as ‘one of the most significant law reform measures since Singapore’s independence.’ The Act clarifies the application of English law and attempts to solve the difficulties associated with the Second Charter.[3]

The basic structure of the Application of English Law Act

The Act re-states the applicability of the principles and rules of English common law and equity and attempts to encompass all applicable English statues or Acts of Parliament by either listing them in the Act or by way of amendments to local statutes based on specific provisions of English statutes. It also preserves and applies the concepts of suitability and modification in keeping with the Second Charter.

Specific reception: The Application of English Law Act and the repeal of Section 5 of the Civil Law Act as well as the listing of English Commercial Statutes

The most far-reaching impact of the Application of English Law Act has been the repeal of Section 5 of the Civil Law Act, which had been a source of much confusion. The Application of English Law Act gives a list of the 13 English commercial statues that are part of the Singapore stature book, ending any uncertainty as to which ones were included.

The Application of English Law Act and Imperial Acts

Imperial Acts were statutes passed by the United Kingdom Parliament and made applicable to colonies like the Straits Settlements. The Application of English Law Act also clarifies which Imperial Acts are part of Singapore law: the Territorial Waters Jurisdiction Act 1878, the Maritime Conventions Act 1911 and the Straits Settlements and Johore Territorial Waters (Agreement) Act 1928.

The Application of English Law Act: Statute Law and the provision for flexibility

Section 8 of the Application of English Law Act provides for flexibility for the Minister to modify or substitute any provision in any English enactment specified in the First Schedule, including the Imperial Acts and 13 English commercial statutes.

The need for an indigenous legal system

While the received English law and common law have served Singapore well, Singapore has to develop a legal system that is more attuned to the needs and aspirations of its society. This would build and reinforce the legal service’s spirit of professionalism and service and thus develop the legitimacy of the legal system in the eyes of the public.[4]

The legal system will also have to accommodate the effects of globalisation, including the ever-increasing interconnectedness of nations and their legal systems, especially with regards to commercial law.

(Write up adapted from The Reception of English Law, Essays in Singapore Legal History)

References

  1. Andrew Phang Boon Leong, ‘English Law in Singapore: Precedent, Construction and Reality or “The Reception That Had To Be” (1986) 2 Malayan Law Journal civ.
  2. Andrew Phang Boon Leong, ‘Of “Cut-Off” Dates and Domination: Some Problematic Aspects of the Reception of English Law in Singapore. (1986) 28 Malaya Law Review 242
  3. Andrew Phang, ‘Cementing the Foundations- The Singapore Application of English Law Act 1993’ (1994) 28 University of British Columbia Law Review 205
  4. Andrew Phang Boon Leong, The Development of Singapore Law: Historical and Socio-Legal Perspectives (Singapore: Butterworths, 1990)

Sources

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