Trade, expansion and the East India Company

Sixteenth-century Europe saw the establishment of huge trading companies such as the British East India Company and the Dutch East Indies Company. The East India Company was established in the 1600 under a charter by Queen Elizabeth I for the purpose of trading in India and the East Indies. The Company was “empowered 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, statues and customs of the realm.” [1] This was followed by another Charter in 1661 permitting the Company to appoint Governors and to administer civil and criminal justice with respect to their employees. In 1773, the Regulating Act of 1773 was passed by the British Parliament signifying the beginning of Parliamentary control over Indian affairs and the powers of legislation by the EIC. This provides the constitutional backdrop during the founding of Singapore.

Map of  East India Company's Settlement  of Singapore. Courtesy of  National Archives of Singapore

Raffles and the founding of Singapore

On 6 February 1819, Sir Stamford Raffles signed a treaty with Sultan Hussein and the Temenggong giving the British the right to establish a factory in Singapore. This date must be taken as the starting point of Singapore's modern legal system.[2] In 1823, Raffles formulated a code of law to be administered in Singapore.[3] Although considered illegal as Raffles was acting beyond the scope of his legal powers, the Regulations remained as the only body of judicial regulation in Singapore until 1826. The six regulations covered areas of land, affairs of the Port of Singapore, gaming, slave trading, setting up of Magistracy and legal administration and the setting up of the Resident's and Magistrates' Courts.

Sir Stamford Raffles. Copyright: Singapore History Musuem

The Anglo-Dutch Treaty and the Treaty of Cession

The Anglo-Dutch Treaty of 1824 formalised British occupation of Singapore. On 24 June 1824, Singapore and Malacca were transferred to the East India Company and become subordinate to Fort William in Bengal and subject to the jurisdiction of the Supreme Court of Judicature in Fort William. In a treaty signed on 19 November 1824 between the new Resident, John Crawfurd and the Sultan and Temenggong, Singapore was ceded to the East India Company.[4] in 1825, a statue was passed to enable the King to make provisions for the administration of justice in Singapore and Malacca and empowered the East India Company to annex Singapore and Malacca to Penang or constitute them as three separate settlements.[5]

The Treaty of Cession of 1824 was not ratified by the British Parliament until 1826 and till the arrival of the Second Charter of Justice, Crawfurd's administration of justice in Singapore was strictly speaking, illegal. Crawfurd established the Court of Requests and a Resident's Court in place of the Magistrate's Courts. in 1826, leading merchants and government officials were appointed Justices of the Peace. The Recorder's Court was established in 1827.

John Crawfurd. Copyright: Singapore History Museum  

The Second Charter of Justice

The Second Charter of Justice, dated 27 November 1826, arrived on 20 March 1827. It was similar in all essentials respects to the earlier charter granted to Penang in 1807. The Charter extended the jurisdiction of the Recorder's Court at Penang to Malacca, Singapore and all dependencies of the Straits Government. The Court of Judicature of Prince of Wales' Island, Singapore and Malacca was established to administer civil and criminal justice.[6] Law making powers were vested with the Supreme Government in India and the British Parliament. in 1826, Singapore, Penang, and Malacca were combined to form the Straits Settlements. Robert Fullerton become the first Governor of the Straits Settlements.

The Recorder based in Penang, travelled on circuit to Malacca and Singapore and was assisted by Resident Councillors and the Governor. Sir John Claridge became the first Recorder of the Court of Judicature. He was recalled in 1829 and the Resident Councillor in each settlement conducted the business of the court till 20 June 1930.

1827-1832: A period of re-organisation and judicial chaos

On 20 June 1830, the Straits Settlements came directly under the control of the Bengal Presidency. The offices of Governor and Resident Councillor ceased to exist and the former Governor Fullerton was named Commissioner. This re-organisation brought legal chaos until 1832 when the titles of Governor and Resident Councillor were restored to enable the operation of the Second Charter. The Court of Judicature reopened in Penang under the presidency of the new Governor, Robert Ibbertson. Sir Benjamin Malkin became the second Recorder of the Court of Judicature.

The Charter Act of 1833 and the Third Charter of Justice

The Charter Act of 1833 empowered the Governor General in Council to legislate for the Straits Settlements and till 1867, was the only source of legislative power in Singapore. Laws and regulations were promulgated either by the Governor General in Council or the British Parliament.[7]This set-up neglected the needs and interests of Singapore and no attempts were made to promulgate local regulations. Increasing frustrations led to a movement to end Indian rule and place the Straits Settlements under the Colonial Office in London.

There was unhappiness with the state of the judicial system in Singapore. The Governor had the authority to overrule the Recorder’s legal judgements. Judicial and executive power was concentrated in the hands of the Resident Councillors. Until 1856 when a Second Recorder was appointed, the Resident Councillor transacted most of the civil business of the Singapore Court. Only serious criminal cases were handled by the Recorder, leading to agitation for a separate Judge for Singapore.

The Third Charter of Justice,dated 12 August 1855 was granted, creating the office of the Second Recorder. The Recorder of Singapore and the Governor and Resident Councillor had jurisdiction over Singapore and Malacca.

Transfer to the Colonial Office

On 10 August 1866, the Government of the Straits Settlements Act was passed and on 1 April 1867, the Straits Settlements was separated from the Government of India.[8] The Straits Settlements were granted a normal colonial constitution by Letters Patent dated 4 February 1867.

Legislative authority was vested in the Legislative Council which had the power to establish laws, institutions and ordinances and to constitute Courts and Officer.

The council consisted of the Governor, Chief Justice, the Officer Commanding the Troops, the Lieutenant-General of Penang, the Colonial Secretary, the Attorney-General, the Colonial Engineer and four unofficial Europeans.[9] By 1871, other Members were added.

1867-1942: A period of calm and judicial development

By the Straits Settlements Act III of 1867, the Governor ceased to be a Judge of the Court of Judicature but Resident Councillors sat in it as Lieutenant-Governors. The Recorder of Singapore became the Chief Justice of the Straits Settlements. By 1868, the Court of Judicature was replaced by the Supreme Court of the Straits Settlements and Resident Councillors ceased to be Judges of the court.

The Ordinance V of 1873 gave the Supreme Court jurisdiction to sit as the Court of Appeal. The Court sat as a Full Court of Appeal of not less than three Judges. Appeals had previously only lain to the King-in-Council.

In 1877, an Executive Council was introduced which empowered the Governor to appoint Judges, Commissioners, Justices of the Peace and other Officers and Ministers.[10] Thereafter, the structure of government and the powers of the Governor to legislate remained largely unchanged until World War II. The last Constitution of the Straits Settlements was that of 1924.

Further changes to the court structure

Following the Ordinance of 1873, several major changes were made to the structure of the courts in Singapore. Following the UK Judicature Acts 1873-1875, the 1878 Ordinance was passed to restructure the courts in Singapore. In 1907, the 1878 Ordinance was re-enacted with amendments. The jurisdiction of the Supreme Court was more organised and the Court would exercise general jurisdiction, original civil and criminal jurisdiction and civil and criminal appellate jurisdiction. It also provided for the Judicial Commissioners of the Federated Malay States [11] District Courts with both civil and criminal jurisdiction and Police Courts replaced the Magistrates’ Courts. In 1934, the Courts Ordinance created the Court of Criminal Appeal, an extension of the Supreme Court’s jurisdiction.

The Japanese Occupation 1942-1945

With the British surrender, Singapore was administered and justice dispensed according to the rules and regulations of the Japanese. All existing courts ceased to function when the Occupation began. A Military Court of Justice of the Nippon Army was established on 7 April 1942 and the civil courts, including the Criminal, District, Police and Coroner’s Courts, were re-opened on 27 May 1942. All former British laws are applicable so long as they did not interfere with the Military Administration. The Syonan Supreme Court sat at the apex of this judicial administration.[12]

Liberation and the abolition of the Straits Settlements

Singapore was temporarily administered by the British Military Administration (BMA) after the Japanese surrender on 12 September 1945. The BMA declared that all laws and customs prior to the Occupation will be respected.

By the Straits Settlements Repeal Act 1946, the Straits Settlements were disbanded.[13] Singapore became a separate Crown Colony vested with its own constitution by the Singapore Order-in-Council 1946.[14] It was essentially a colonial one and was criticised as failing to allow local people to play an effective role in public affairs. A new Constitution came into effect on 1 March 1948 which allowed for local elections to be held for the first time on 20 March 1948. Most of the seats were won by the Progressive Party which dominated Singapore politics up till late 1950s. The judicial structure remained unchanged.

The Rendel Constitution

A Constitutional Commission headed by Sir George Rendel was set up in 1953 to introduce changes to the constitutional system. The Rendel Consitution, implemented by the Colony Order-in-Council of 1955, introduced automatic registration of voters and the Legislative Council would become a mainly elected Assembly.[15] The 1955 elections resulted in the Labour Front winning the most seats and David Marshall became the first Chief Minister of Singapore.

Members of the Rendel Commission. Source MICA Collection, courtesy of  National Archives of Singapore

Constitutional talks and self-government

Demands by David Marshall for more power led to constitutional talks in London. Talks broke down when Marshall demanded full internal self-government. Marshall resigned in June 1956. Lim Yew Hock became Chief Minister and led a second all-party delegation to London to renew talks in March 1957. The terms of the new Constitution were agreed upon and on 1 August 1958, the British Parliament passed the State of Singapore Act which made Singapore a self-governing state.[16] By the Singapore Constitution Order-in-Council 1958, the post of Governor was replaced by the Yang di-Pertuan Negara as the constitutional head of state. The Yang-di-Pertuan Negara would appoint the Prime Minister as well as the ministers and Chief Justice on the advice of the Prime Minister. The new office of the British High Commissioner would act on Royal Instructions and chaired the new Internal Security Council. External affairs of the State of Singapore was under the British Government.

The People’s Action Party (PAP) won the 1959 general elections. Outgoing governor, Sir William Goode became the first Yang di-Pertuan Negara and Lee Kuan Yew became Singapore’s first Prime Minister.

Lee Kuan Yew and Sir William Goodie. Source: National Archives of Singapore

Merge and Separation

The new PAP government sought merger with the Federation of Malaya. Under the Malaysia agreement concluded on 9 July 1963, the Colonies of North Borneo and Sarawak and the State of Singapore would be federated with the existing states of the Federation of Malaya to form the Federation of Malaysia. A new State Constitution was granted to Singapore to effect this change in status.[17] The judicial branch of the government was treated as a federal matter and did not exist as part of the state Constitution.

Internal politics, worsening relations and tensions finally led to Singapore’s exit from the Federation. On 9 August 1965, Singapore’s independence was proclaimed.

The aftermath of independence

Following separation, the temporary constitution adopted by Parliament on 22 December 1965 was the only operational constitution Singapore has had since independence. It was a conglomeration of three separate documents: the Constitution of the State of Singapore 1963, the Republic of Singapore Independence Act 1965 and portions of the Malaysian Federal Constitution imported through the Republic of Singapore Independence Act. This lasted until 1979 when a constitutional amendment was passed authorising the Attorney-General to print and publish a consolidated Reprint of the Constitution of Singapore, where the provisions of the Singapore Constitution were to be found in one single composite document.

The separation of Malaysia had been effected by a series of documents. First, the Constitution and Malaysia (Singapore Amendment) Act [18] transferred all legislative and executive powers to the new Government of Singapore. Second, the Constitution of Singapore (Amendment) Act [19] was passed on 22 December 1965 retrospective to 9 August 1965 which changed the procedure required for constitutional amendment and bring the Constitution in line with Singapore’s independent status. The final document of importance is the Republic of Singapore Independence Act of 1965.[1]

Entrenching minority rights and the Wee Chong Jin Commission

The economic and social imperatives were the main concerns of the government and they were manifested in the manner in which the Constitution was from time to time amended. One key concern was the protection of minority rights and interests. A Constitutional Commission headed by Chief Justice Wee Chong Jin was set up in December 1965 to see how these interests could be safeguarded. The Commission issued their report in 1966 with a number of important recommendations.[21] A Parliamentary Select Committee was set up to study the proposals relating to the Council of State which was renamed Presidential Council in the Constitution(Amendment) Bill 1969. Under the 1969 provisions, the Presidential Council comprised a chairman, 10 permanent members and 10 non-permanent members appointed by the President on the advice of the Cabinet.

Opening of Legal Year. Source: Supreme Court

Changes to the judiciary

After independence, the Singapore High Court remained part of the Federal Court structure until 1969 with the Constitution (Amendment) Act 1969 [22] and the Supreme Court of Judicature Act.[23] The amending act also reconstituted the Judicial Committee of Her Britannic Majesty’s Privy Council as the final court of appeal in Singapore.

An amendment to Article 94 of the Constitution was made in 1971 to permit the appointment of supernumerary judges where retired judges could stay on as judges on a contractual basis.[24] A further amendment to the Constitution in 1979 created the position of Judicial Commissioners who are appointed on a temporary basis so that practitioners can return to private practice when the term is up.

In 1993, all appeals to the Privy Council were abolished. A permanent Court of Appeal was constituted, presided over by the Chief Justice as the Court’s President.[25]

Entrenching Singapore's soveriegnty

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 two-thirds of the electorate supported such a change during a national referendum. The amendment also prohibits relinquishing control of the Singapore Police Force and the Singapore Armed Forces.

Changes to the parliamentary system

A constitutional amendment was passed in 1984 to allow six best “losers” in the general elections in Parliament as Non-Constituency Members of Parliament, who have all the rights and privileges as normal MPs but cannot vote on bills to amend the Constitution, Supply or Money Bills or on a motion of no confidence in the Government.

A constitutional amendment made prior to the 1988 general elections introduced the Group Representation Constituency or GRC. Each GRC would have at least one candidate from a minority race, thus entrenching the multi-racial component of politics in Singapore’s Constitution. In 1991, a constitutional amendment was passed to increase the number of MPs in a GRC from three to four. The maximum number was increased to six in 1997.

In 1990, the Constitution was amended to introduce the Nominated Member of Parliament to have alternative views on policies by non-political persons.

The Elected Presidency

The Constitution was amended in 1991 to provide for a popularly elected Head of State. This was to institutionally safeguard Singapore’s massive foreign reserves and the integrity of the civil service from a profligate and populist government. Subsequent amendments were made to the Elected Presidency scheme.

Ong Teng Cheong being sworn in as Minister Without Portfolio and Deputy Prime Minister by President Wee Kim Wee in 1988. In 1992, he became Singapore's first elected President. Source: MICA Collection, courtesy of National Archives of Singapore

Conclusion

In Singapore, the constitutional process has prevailed and the Constitution has provided the framework within which the Government is run. Alterations made to the constitutional and parliamentary system have however set Singapore apart and taken it further and further away from the Westminster model which Singapore has inherited.

(Write-up adapted from A Short Legal and Constitutional History of Singapore, Essays in Singapore Legal History)

References

1. ↑V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, 5^th ed. (Lucknow: Eastern Book Company, 1981), at p. 373
2. ↑ L.A. Mills, “British Malaya 1824-1867” (1960) XXXIII Journal of the Malayan Branch of the Royal Asiatic Society Part 3.
3. ↑ “Raffles Singapore Regulations- 1823” reprinted in (1968) 10 Malayan Law Review LR 248.
4. ↑ Sir Roland Braddell, The Law of the Straits Settlements: A Commentary, 2^nd ed. (Singapore: Kelly & Walsh, 1931).
5. ↑6 Geo IV.
6. ↑Letters Patent Establishing the Court of Judicature at Prince of Wales’ Island, Singapore, and Malacca in the East Indies(London: Printed by J.L. Cox, 1827).
7. ↑G.W. Bartholomew, “The Singapore Legal System” in Riaz Hasan, ed, Singapore: Society in Transition (Singapore: Oxford University Press, 1976).
8. ↑29 & 30 Vic.
9. ↑R.O. Winstedt, The Constitution of the Colony of the Straits Settlements and of the Federated and Unfederated Malay States(London: The Royal Institute of International Affairs, 1931)
10. ↑Letters Patent dated 17 November 1877.
11. ↑Myint Soe, General Principles of Singapore Law(Singapore: The Institute of Banking & Finance, 1978).
12. ↑Goh Kok Leong, Legal History of the Japanese Occupation in Singapore (1981) 1 Malayan Law Journal.
13. ↑9 & 10 Geo VI.
14. ↑Order-in-Council dated 27 March 1946, Statutory Rules and Orders, No 462, 1946.
15. ↑Statutory Instruments 1955 No. 187.
16. ↑Report of the Singapore Constitutional Conference held in London in March and April 1957(Seasonal Paper, No. Misc 2 of 1957).
17. ↑The Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (Statutory Instruments 1963 No 1493), as published in the State of Singapore Government Gazette Sp No S 1 of 1963.
18. ↑Act No 53 of 1965.
19. ↑Act No 8 of 1965.
20. ↑Act No 9 of 1965.
21. ↑Report of the Constitutional Commission, 1966, reproduced as Appendix D in Kevin Y.L. Tan and Thio Li-ann, Tan, Yeo & Lee’s Constitutional Law in Malaysia and Singapore, 2^nd ed(Singapore: Butterworths, 1997).
22. ↑Act No 19 of 1969.
23. ↑Act No 24 of 1969.
24. ↑Act No 16 of 1971.
25. ↑Tan Yock Lim, “Legislation Comment: Supreme Court of Judicature (Amendment) Act 1993” (1993) Singapore Journal of Legal Studies 557.